The legal landscape for AI-generated materials in games has been pretty uncertain for the last few years (and remains so, as many cases slowly make their way through US courts).
On April 2, 2025, the US Copyright Office released their latest report: “Copyright and Artificial Intelligence, Part 2: Copyrightability.” This new report addresses a critical question for game developers: What AI-generated content can be copyrighted?
You can access the lengthy report on the Copyright Office’s site here, but I’ve done my best to summarize the findings with a view towards game development (both for board games and video games).
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AI and Copyright – Key Findings
The report confirms that human authorship remains fundamental to copyright protection. Let’s explore what this means for game developers in practice.
1. AI as a Tool Doesn’t Affect Copyright Protection
The Copyright Office makes a clear distinction between using AI to assist creative processes versus using AI to replace human creativity.
The report states: “While assistive uses that enhance human expression do not limit copyright protection, uses where an AI system makes expressive choices require further analysis” (p. 12).
What this means for games: Game developers can confidently use AI tools for many common development tasks without copyright concerns:
- Using AI to detect bugs in code
- Removing unwanted objects or backgrounds from scenes
- Enhancing textures or optimizing assets
As the report notes, “The distinction depends on how the system is being used, not on its inherent characteristics” (p. 12 – emphasis added). This means the same AI tool could be used in both protected and unprotected ways, depending on how you implement it.
2. Prompts Alone Don’t Create Copyright Ownership
I get this question a lot from clients, but the document answers it succinctly – Simply entering prompts into generative AI tools doesn’t give you copyright over the output.
The Copyright Office explains:
“The Office concludes that, given current generally available technology, prompts alone do not provide sufficient human control to make users of an AI system the authors of the output. Prompts essentially function as instructions that convey unprotectible ideas” (p. 18).
The report further notes that “prompts may reflect a user’s mental conception or idea, but they do not control the way that idea is expressed” (p. 19).
What this means for games: If you’re using text prompts to generate game art, music, or text elements, those outputs likely aren’t protected by copyright without further modification. For example:
- Character designs created solely through Midjourney prompts
- Background music generated through text-to-music AI
- Game lore or rules text created through ChatGPT prompts
- Software code generated by AI without further modification
The Copyright Office illustrates this with an example: “The gaps between prompts and resulting outputs demonstrate that the user lacks control over the conversion of their ideas into fixed expression” (p. 19).
3. Human-Created Inputs Remain Protected
When you incorporate your own copyrightable work into an AI system and those elements remain visible in the output, you maintain copyright protection over those elements.
The report explains: “Where a human inputs their own copyrightable work and that work is perceptible in the output, they will be the author of at least that portion of the output” (p. 24).
What this means for games: Game developers can maintain copyright protection when using AI to transform their original work:
- Taking your hand-drawn character concept and using AI to render it in 3D
- Using AI to convert your game’s 2D art assets into animated versions
- Feeding your original story elements into AI for expansion or adaptation
The Copyright Office registered a work called “Rose Enigma” that demonstrates this principle, where the human author’s hand-drawn illustration was clearly visible in the AI-generated output (p. 23).
However, the protected portion of the work was limited – “copyright in this type of AI-generated output would cover the perceptible human expression” and that’s it.
4. Creative Modifications and Arrangements Are Protected—But With Significant Limitations
Even if you start with AI-generated content, your creative modifications or arrangements may qualify for copyright protection. However, this protection is pretty limited in scope.
The report states: “A human may select or arrange AI-generated material in a sufficiently creative way that ‘the resulting work as a whole constitutes an original work of authorship'” (p. 24).
Note: the Copyright Office clarifies that protection only extends to your specific contributions, not the underlying AI-generated elements: “Copyright would extend to the material the human author contributed but would not extend to the underlying AI-generated content itself” (p. 25).
What this means for games: When working with AI-generated elements, copyright protection applies only to:
- Your specific edits and modifications to AI-generated art, not the original AI output
- Your particular selection and arrangement of AI-generated music tracks, not the individual tracks themselves
- Your creative organization of game rules or text, not the AI-generated content itself
This is similar to how derivative works are protected: “The copyright would extend to the perceptible human expression. It may also cover the selection, coordination, and arrangement of the human-authored and AI-generated material, even though it would not extend to the AI-generated elements standing alone” (p. 24).
For example, the Copyright Office registered a comic book combining human-authored text with AI-generated images but limited the protection to “the overall selection, coordination, and arrangement of the text and visual elements” (p. 25).
An example of protectible modification and arrangement is included in the report, using Midjourney’s functionality to modify a generated image – this would theoretically be protected to the extent that the user modified and rearranged things:
The Legal Framework
The Copyright Office bases its analysis on several foundational legal principles:
- Human authorship requirement: “Copyright protection in the United States requires human authorship. This foundational principle is based on the Copyright Clause in the Constitution and the language of the Copyright Act as interpreted by the courts” (p. 7).
- Ideas vs. expression: The report notes that “ideas or facts themselves are not protectible by copyright law” (p. 8), highlighting the distinction between unprotectable concepts and protectable expression.
- Originality standard: The report cites the Supreme Court’s Feist decision, explaining that “the requisite level of creativity is extremely low; even a slight amount will suffice” (p. 8-9).
Future Outlook on AI Copyright for Games
The Copyright Office concluded that no legislative changes are needed at this time: “Questions of copyrightability and AI can be resolved pursuant to existing law, without the need for legislative change” (p. iii).
They also emphasize that case-by-case analysis remains necessary: “Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis” (p. iii).
Game developers should approach AI integration thoughtfully and with some caution:
- Document your creative process and human contributions
- Consider using your own original assets as inputs when possible
- Make meaningful creative modifications to AI-generated outputs
- Focus on the selection, coordination, and arrangement of game elements, if AI generation or the other limitations here are not avoidable
The report clearly states: “Copyright protects the original expression in a work created by a human author, even if the work also includes AI-generated material” (p. iii).
By maintaining significant human creative input throughout development, you’ll maximize your game’s copyright protection while still benefiting from AI’s efficiency and capabilities.
Need help with your game development, whether dealing with AI copyright issues, trademarks, or anything else? Check out my contact page here to set up a consultation.
