Hank's IP Brew — Issue #37

Howdy, y'all.

This week: an Icelandic travel influencer just won a copyright case that every creator who's ever had their photos reposted without credit should read — and the defense that lost is one you've probably seen before. And EA Sports College Football has become the biggest mass-NIL licensing experiment in history, with costs tripling in two years and some insiders now wondering if the math holds.

Let's get into it.

Asa Steinarsdóttir is an Icelandic travel creator who built a following documenting trips to remote destinations — Antarctica among them. Tripscout is a travel-focused social media company that republished her photos and videos without permission, got caught, stopped, then started again.

On October 13, a federal judge in Washington, D.C. granted Steinarsdóttir summary judgment on her copyright infringement claims against Tripscout. The ruling is a clean win on the facts — but the part worth paying attention to is the defense that Tripscout raised and lost.

The Instagram ToS defense

Tripscout argued that it had a license to use Steinarsdóttir's content. Not a license she gave them directly — a license it claimed flowed from Instagram's Terms of Service. The argument goes like this: when you post something to Instagram, you agree to Instagram's Terms of Service, which grant Instagram a broad license to use your content. Tripscout argued that this license effectively gave it (and by extension, any app or platform building on Instagram's data) the right to republish that content.

The court rejected this flatly. Instagram's Terms of Service grant a license to Instagram — not to Instagram's users, not to third-party companies, not to apps that access Instagram's API. Tripscout never received a sublicense from Instagram, and Instagram's ToS doesn't create one. The court found no legal basis for Tripscout's claimed right to republish the creator's work.

This matters beyond this one case. The "you posted it publicly so anyone can use it" argument — sometimes dressed up in ToS language, sometimes offered as a vague fair use claim — is one of the most common defenses raised when creators confront companies that scrape and republish their work. The Instagram ToS version is particularly widespread in the travel, food, and lifestyle content spaces, where media companies and aggregators routinely republish photos from Instagram accounts to their own feeds and claim the platform's ToS as cover. Courts have now rejected it at summary judgment.

How the case actually unfolded

The timeline is worth knowing, because it's instructive about creator strategy.

Tripscout began republishing Steinarsdóttir's content in 2017. At the time, she didn't object — she was still building her following and the exposure may have seemed valuable. By 2021, her follower count had grown substantially, and she reassessed. She revoked consent, demanded a licensing agreement, and asked Tripscout to pay for its past unlicensed uses. Tripscout refused and removed her content from its pages.

Then, later, Tripscout began using her content again. That's when she sued.

The court's damages ruling is also worth noting. Steinarsdóttir is eligible for either actual damages — including lost licensing fees and Tripscout's wrongfully obtained profits — or statutory damages for five separate infringements. Statutory damages under the Copyright Act can reach $30,000 per work for standard infringement, or $150,000 per work if willfulness is established. The decision of which route to pursue goes to trial.

What creators should take from this

First: your photos, videos, and original content are protected by copyright the moment you create them, regardless of where you post them. Posting to Instagram, TikTok, or any other platform does not strip you of copyright or give other companies the right to republish your work commercially.

Second: the ToS defense doesn't hold. If a company tells you it has the right to use your content because of the platform's terms of service, that is not a valid legal argument under current case law. The platform's license is to the platform.

Third: initial tolerance isn't permanent consent. Steinarsdóttir didn't object in 2017 — and the court still found in her favor on the 2021-and-beyond uses once she revoked consent. Not objecting immediately doesn't waive your rights forever.

Fourth: registration matters, especially for damages. Steinarsdóttir's case was strong enough to reach summary judgment. But statutory damages — the ones with real deterrent teeth — require copyright registration. If you create content that you care about protecting, register it.

When EA Sports released College Football 25 in July 2024, it was the most anticipated sports video game in a decade. The franchise had been dormant since 2013, when EA dropped it rather than keep fighting lawsuits over using college athletes' likenesses without compensation. The comeback was built on NIL: instead of using athletes without paying them, EA negotiated individual opt-in deals with every player who appeared in the game.

More than 11,000 athletes participated. Each received $600 and a copy of the game. Total NIL spend: roughly $7 to $7.5 million. The result was the bestselling sports video game in U.S. history.

Two years later, the costs look different. By College Football 27 — released in July 2026 — per-player payments had increased to $1,500. With thousands of athletes participating, EA's total NIL bill is now approaching $20 million per game. Sources familiar with the franchise's development, reported by Insider Gaming and covered by Deseret News, say there is internal concern that the series could be discontinued "by end of the decade" if costs continue rising and revenue growth doesn't keep pace. Sports business reporter Matt Brown of Extra Points has noted that at least one more release is contractually obligated, but that the long-term economics are genuinely uncertain.

What happened to sales

College Football 25 was a historic launch. College Football 26 remained a strong seller in 2025, finishing seventh on the North American annual sales charts. College Football 27 debuted at No. 2 in July 2026 — solid, but below the phenomenon of the original return — and had fallen out of the top 10 by August.

Annual sports titles always sell best at launch and taper quickly, so rankings alone don't tell the full story. But the combination of declining launch impact and rapidly increasing NIL costs is what's generating internal concern.

Why this matters beyond EA

College Football is the largest mass-athlete NIL licensing deal ever executed. At its peak, it involved more than 11,000 individual agreements — negotiated through a centralized structure, but representing individual consent from each athlete. The cost structure started at roughly $680 per athlete all-in (payment plus game copy) and has nearly tripled in two years.

That trajectory illustrates something important about mass NIL licensing that brands entering the space should understand: per-athlete costs in multi-athlete campaigns tend to increase over time as athletes become more aware of the market value of their participation. When EA launched CFB 25, $600 was a reasonable offer in a market where athletes had no precedent for this kind of deal. By CFB 27, athletes and their advisors had two years of precedent, knew the game had generated enormous revenue, and negotiated accordingly.

For brands running multi-athlete NIL campaigns — a food company signing a dozen athletes from a single school, a platform signing athletes across a conference, a video game publisher signing thousands across every Division I program — the EA situation is a live case study in what happens when you build a product whose cost structure depends on keeping per-athlete rates low at scale.

There's also a rights management dimension. EA's NIL deals are opt-in, renewed each cycle, and subject to renegotiation. Any athlete can decline. If a meaningful portion of rosters opt out — either because they want more money or because a competing offer emerges — the game's appeal to hardcore fans who want their team's real roster is directly affected. The product's authenticity is its core value proposition, and that authenticity depends on ongoing athlete cooperation.

What brands and advisors should watch

If EA discontinues the franchise, it would represent the first major NIL deal to fail not because of legal risk or regulatory change but because the underlying economics of mass athlete licensing became unsustainable. That would be a significant data point for any brand considering a similar model.

If EA finds a way to restructure — revenue sharing, tiered payments, a collective licensing arrangement through the schools or conferences — that approach will likely become the template for the next generation of mass-athlete NIL campaigns.

Either way, the College Football franchise is running the experiment in real time. The results will matter well beyond video games.

See you next time,

Hank

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About Hank's IP Brew

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