Electronic Arts (EA) (defendant) created a college football video game. EA created avatars for the game that replicated actual college football players without using their names. To create a replica avatar for each player, EA used the real player’s actual attributes such as the player’s jersey number, skin tone, hair color, height, weight, and home state. Samuel Keller (plaintiff) was a college football player whose attributes EA used for an avatar in its video game. Keller filed a putative class-action suit in the United States District Court for the Northern District of California, alleging that EA violated his right of publicity. EA asserted that its use was protected by the First Amendment. The district court disagreed and found that the First Amendment defense did not apply as a matter of law. EA appealed.