What are the legal risks of using generative AI in games development?
Generative artificial intelligence, or GenAI, presents many opportunities in the gaming industry.
Many of this year's biggest developer events, including GDC, have been awash with companies touting the use of GenAI for creating dozens of maps/levels, to improve development workflows, performing QA tasks, or even responding directly to in-game actions from a player. Additionally, big industry players are actively developing hardware to support the use of GenAI, such as NVIDIA's unveiling of the SUPER series of GPUs at the start of the year.
Given all this, it is easy to imagine a not-so-distant future where GenAI plays a substantial role in the development and/or gameplay of most games. Among all the excitement, though, there are also legal risks posed when using GenAI in gaming. Publishers will need to address these stumbling blocks before fully integrating GenAI.
The potential legal risks are wide-ranging across many different areas of the law. Intellectual property law (e.g., trademarks, copyrights and patents), privacy law, and tort law/contract law, among others, could all be implicated when using GenAI.
Some of these legal risks relate to the use of GenAI purely in the development of a game before it is released into the wild (what I will call 'DevAI' herein), while others relate to the use of GenAI during gameplay (what I will call 'LiveAI' herein), and many are present in both.
Perhaps the biggest elephant in the room, and the one most people are taking about (both inside and outside of gaming), is how GenAI intertwines with IP law. There are clearly many important questions to tackle, such as: are there any IP issues if the model was trained on protected content? What if the model outputs content that is, itself, protected IP? Can you obtain IP protection on the output of your GenAI model? Let's dig a little deeper.
The discourse around IP infringement came up earlier this year as a central part of the Palworld debate (i.e., discussions about whether Palworld does
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