As artificial intelligence transforms gaming, developers and publishers need a clear, strategic approach to incorporating AI into their pipelines. Success requires balancing innovation with thoughtful risk management while maintaining the sophistication and technical insight that drives industry evolution.
That push-and-pull was a central focus of a recent CLE series discussion between litigation counsel Kimberly Culp, technology transactions associates Julia Arruda Rosenthal and Peter Hart, and intellectual property associate Mal Kind. Here's key takeaways for gaming companies considering when to leverage AI technologies in game creation and monetization:
Implement AI intentionally. The most crucial consideration is being strategic and precise about which game elements utilize AI generation. For code development, consider restricting AI use to generic implementations rather than core systems. This approach helps preserve your ability to protect valuable IP assets while still leveraging AI's benefits for efficiency.
With art assets, AI may work well for generating background elements or basic items, but relying on it for main characters or iconic elements could limit copyright protection and future monetization opportunities. The key is maintaining detailed records documenting where and how AI tools are used, human creative input and oversight, and quality control measures.
Adopt a holistic IP-protection strategy. Navigating the intellectual property landscape for AI-generated content demands careful consideration. Patents require a human inventor, so focus on documenting human contributions to AI-assisted inventions. While current patent applications don't require specifying AI-generated elements, maintaining clear records helps future-proof your IP strategy.
Copyright protection, meanwhile, requires demonstrable human creative input in "expressive elements," meaning pure AI-generated content may not be copyrightable without substantial human direction and modification.
Consider AI for testing and security. AI shows particular promise in testing and quality assurance, where it can simulate thousands of gameplay scenarios, identify bugs, and validate game balance with minimal IP concerns. However, gaming companies must also address both opportunities and challenges around AI-powered bots and hacks. While AI can enhance legitimate features like NPCs, it also enables sophisticated cheating, requiring robust detection systems and clear acceptable use policies.
Enhance advertising and partnerships through AI. AI enables sophisticated in-game advertising, but it requires careful attention to privacy, fairness, and brand protection. Focus on first-party data collection, establish clear parameters for AI-generated ads, and maintain transparency in all practices. When working with third-party AI tools, carefully review terms around output ownership, training data rights, and quality control standards.
As technology and regulations evolve, gaming companies should stay informed about legal developments while maintaining flexible development practices. Document AI use cases and human input thoroughly, focus implementation on clear business benefits, and regularly review governance policies. Working with experienced counsel early helps establish appropriate guardrails and documentation practices that bridge established territories and new frontiers.
By taking a measured, strategic approach that balances innovation with risk management, gaming companies can capture AI's benefits while protecting their intellectual property and long-term value creation.
Learn more about Fenwick’s games and artificial intelligence practices, or register to watch any of our 2025 CLE webinars on-demand (self-study credit available).