IP
Celebrating Innovation: AI’s Role in Esports Growth
Table of Contents
Introduction
Generative AI has evolved from a technical experiment to a creative disruptor, now capable of producing artwork, music, and writing that rivals human expression. In esports and gaming, tools like Midjourney and DALL.E are used for designing team logos, social media content, Twitch overlays, and even AI-driven commentators. Yet the more these systems emulate creativity, the harder it becomes to separate human artistry from algorithmic imitation.
The problem is that copyright law was not built for machines that ‘create.’ Under U.S. law, authorship requires human intent and creative agency, qualities AI lacks. The U.S. Supreme Court has held that an author is “the person who translates an idea into a fixed, tangible expression entitled to copyright protection.”[1] This principle highlights the legal necessity of human intentionality and creative control in the fixation of ideas, a principle the author will refer to here as the ‘personhood test’.
The U.S. Copyright Office states that AI art does not receive copyright protection.[2] The U.S. Copyright Office has confirmed that purely AI-generated works do not qualify for copyright protection and instead enter the public domain.[3] The question that arises is whether an AI system, lacking consciousness or volition, can ever satisfy the standards of authorship?
The Requirement of Human Contribution
The foundation of U.S. copyright law is distinctly human-centered. In Burrow-Giles Lithographic Company v Sarony (1884), the Supreme Court described copyright as “the exclusive right of man to the production of his genius or intellect.”[4] The establishes that authorship and by extension, ownership must stem from human creativity. In Feist Publications Inc. v Rural Telephone Service Co. (1991), the Court reaffirmed that “the essence of copyright… assures authors the right to their original expression, while encouraging others to build freely upon the ideas conveyed by a work.”[5] The doctrine thus incentivizes human creators to innovate while sharing ideas that advance collective progress.
The origins of U.S. copyright reflect this anthropocentric purpose. The first Copyright of 1790 codified “the principle that an author of work may reap the fruits of his or her intellectual creativity for a limited time,” a purpose enshrined in the Constitution’s grant to Congress “to promote the progress of Science and useful Art for limited times to authors.”[6] Creativity, therefore, is inseparable from human intellect.
The U.S. Copyright Office’s Part 2 Report underscores this point: “[n]o court has recognised copyright in material created by non-humans and those addressing the issue have rejected the possibility.”[7] Likewise, Thaler v. Perlmutter reaffirmed that “the statutory provisions identify an ‘author’ as a human being… the Copyright Act requires human authorship as only humans possess the legal attributes the law requires.”[8]
AI cannot own property or bear rights; it lacks legal personhood. This is not unique to the U.S. The European guidance also holds that: “A work is original if it is the result of the author’s own intellectual creation… that there must be identifiable human involvement and creative choices in the making.”[9] Accordingly, fully autonomous AI outputs cannot qualify for protection, as they lack the creative decision-making the law requires.
Philosophically, Georg Hegel captured this humanist foundation: “a person as his substantive right of imprinting his will into any and everything, thereby making it his.”[10] Ownership, in this sense, is the manifestation of human will. Applied to AI, this principle highlights that creativity without intent is mere computation. Generative systems reassemble data, often drawn from copyrighted human works, but contribute no genuine purpose or understanding. In Bartz v. Anthropic (2025), the court highlighted the human value embedded in training data, observing that the model “values the creative expression (authors) contained.”[11] This reinforces that AI models build on human craftsmanship. Granting them copyright would misattribute the source of creativity.
Some commentators propose giving programmers or developers copyright protection over AI outputs, arguing it would stimulate innovation. Yet as critics note, “[a]llocating the copyright to the programmer… would cause a widespread monopolization of all future works generated by a single software program, skewing the disproportionality.”[12] This would hand disproportionate power to major tech developers and undermine independent creators, including esports designers, streamers, and fan artists, whose work could be easily outproduced by AI-driven platforms
AI as a Tool
The U.S. Copyright Office Report Part 2 stated that “[t]he person who instructs a GenAI with enough detail, such that model output reflects that person’s original conception of the work, should be regarded as the author of the resulting work.”[13] This marks a nuanced development by recognizing that people who provide sufficiently detailed instructions to generative AI can be credited when the output reflects their original creative conception. It attempts to balance copyright’s traditional emphasis on human originality with the practical realities of AI-assisted works.
However, this raises the critical question of what constitutes the threshold of sufficient human input to merit copyright protection. In the absence of a recent judicial ruling endorsing the 2025 guidance, the standard remains undefined, rendering current guidance a matter of administrative policy rather than binding statutory law.
In Thaler, the court affirmed that “the computer is an inert instrument, capable of functioning only when activated either directly or indirectly by a human. It is capable of doing only what it is directed to do in the way it is directed to perform.”[14] Generative AI functions as a creative amplifier, enhancing human creativity and assisting in the production of derivative works.
However, output generated without sufficient human creative contribution falls outside the scope of copyright protection. This raises the question: what threshold of originality would make a human prompter the author of an AI-assisted work? AI-assisted work without human intervention would fall outside the scope of protection. In Zarya of the Dawn (2023), the artist used Midjourney to create her comic book, claiming authorship. However,
“The Office concludes that the images generated by Midjourney contained within the work are not original works of authorship protected by copyright… will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”[15]
Copyright law draws a firm boundary by protecting creations of human intellect rather than outputs generated by algorithms. This reflects the Office’s commitment to copyright’s anthropocentric foundation but exposes the doctrinal limitations in addressing works created by fully autonomous AI models. GenAI “remains in the domain of narrow intelligence, primarily functioning as a tool that extends human capabilities… in its current form, still operates as a passive or minimally autonomous system.”[16] Thus, generative AI acts only on human prompts and training data; it lacks the creative intent to be considered an author under copyright law.
Yet, this reasoning appears inconsistent with the Office’s separate position that works created with substantial human prompting may qualify for copyright. Suppose generative AI, by its definition, is a passive tool guided by human input. In that case, it is difficult to reconcile why prompting in some cases constitutes sufficient creative control while in other cases it is dismissed as mere operation of the machine. This discrepancy raises questions about where the legal threshold lies between human authorship, machine assistance, and whether current doctrine can be applied consistently to AI-mediated creation.
Reforms
AI is testing copyright’s core premise: that creativity is human. To address this, scholars and policymakers have proposed several reforms.
AI as a Legal Author
Some propose granting AI systems formal authorship, arguing that neural networks exhibit a kind of computational autonomy that defies human predictability. “[T]he network architecture can produce outputs that the programmers themselves could not have foreseen,”[17] one scholar notes, suggesting this unpredictability constitutes creativity.
Supporters claim AI authorship could improve transparency, require clear disclosure of non-human creative involvement, and record provenance. This could be useful in industries like esports, where AI-generated marketing or broadcast content might blur ownership lines between developers, teams, and sponsors.
Yet legally, this proposal is incompatible with U.S. doctrine. Copyright law is built on human personhood. Granting AI authorship would unravel its foundation, creating ownership without accountability and eroding human creative value. It could also lead to ‘copyright factories,’ where machines endlessly generate protectable works with no human effort, undermining the very incentive structure copyright was designed to promote.
AI in Esports
A more balanced solution is to treat AI-assisted works under the work-for-hire doctrine. Section 201(b) of 17 U.S.C. provides that “work-for-hire is when the employer or commissioning party is deemed the author and, unless otherwise agreed in writing, holds all the copyright.”[18] This allows the law to recognize human ownership even when the creative act involves non-human processes.
While conceptually strained, the model maintains legal stability and keeps humans at the center of copyright. This framework fits naturally within esports and digital media. If a game studio commissions AI tools to design promotional material, the studio can hold copyright as the commissioning entity, provided it directed the creative process. This approach mirrors existing creative contracts in game development, esports content, and animation.
To complement this, the U.S. Copyright Office’s Guidance Part 3 recommends voluntary collective licensing, where rights holders can pool works for AI training under shared terms. As reports note, “voluntary collective licensing enables the ability to aggregate smaller publishers and facilitates more efficient licensing and distribution for a greater number of licensors.”[19] For esports, where vast libraries of logos, gameplay footage, and broadcast visuals are used in training data, collective licensing offers a path to fair use and transparency.
Metadata strengthens this approach. Embedding authorship and licensing information into files ensures it travels with the work, machine-readable and enforceable. Among opt-out tools like watermarking or technical flags, metadata stands out: it is durable, interoperable, and binds authorship directly to the asset. For creators in esports, this could be transformative. Streamers could tag highlight clips or overlays with embedded rights data, ensuring any AI or aggregator using those assets respects licensing conditions. Metadata effectively merges creative and legal identity, preserving human authorship in a digital ecosystem dominated by algorithms.
Conclusion
Generative AI challenges the very premise of copyright but not its purpose. The law’s insistence on human authorship is not outdated; it’s essential. Copyright’s function is to reward human creativity, not machine output. Fully autonomous AI works, devoid of human intervention, remains outside protection, a position that preserves the integrity of the system. Yet, ignoring AI’s role in human-led creation risks alienating modern creative practices. Esports and digital media illustrate this tension clearly: most content today is AI-assisted, not AI-authored.
Granting AI authorship would undermine copyright’s human foundation, rendering creativity a commodity detached from intent. Instead, the work-for-hire model. Strengthened by voluntary collective licensing and metadata-based safeguards, offers a pragmatic balance. It acknowledges AI’s capacity to amplify human expression while ensuring legal ownership and accountability remain human.
As AI transforms creative production in fields such as esports and storytelling. Policymakers face a central challenge of protecting human creativity in an algorithmic era. The goal is not to replace existing frameworks, but to adapt them to new forms of human-machine collaboration. Copyright law must evolve while still protecting human authorship.
[1] 17 U.S.C. § 102(a); see U.S. Copyright Off., Circular 1: Copyright Basics (Oct. 2021).
[2] U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 306, 313.2 (3d ed. 2021).
[3] Mackenzie Caldwell, ‘What Is an “Author”? – Copyright Authorship of AI Art Through a Philosophical Lens, ‘Vol. 61, Issue 2, (2023).
[4] Burrow-Giles Lithographic Company v. Sarony, 111 U.S. 53 (1884).
[5] Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
[6] US Copyright Office, A Brief History of Copyright in the United States (2025).
[8] Thaler v Perlmutter, D.C. Cir. (2025).
[9] European Parliament, Generative AI and Copyright – Training, Creation, Regulation Report (2025).
[10] GFW Hegel, Elements of Philosophy of Right, Cambridge University Press (1991).
[11] Bartz v Anthropic PBC, N.D. Cal. (2025).
[14] Thaler v Perlmutter, D.C. Cir. (2025).
[15] U.S. Copyright Office, Cancellation Decision re: Zarya of the Dawn (2023).
