The January 1999 issue of D's magazine featured a cover photograph of P, best known for his role as 'Manny Gutierrez' on the syndicated television program 'Baywatch' from 1996 to 1999. P was shown shirtless and wearing his red lifeguard trunks, the uniform of his 'Baywatch' character, under a heading reading: 'TV Guys. PRIMETIME'S SEXY YOUNG STARS EXPOSED.' P did not appear nude in the magazine. P sued D, alleging it deliberately created the false impression that he did so, making it appear he was willing to degrade himself and endorse such a magazine. The district court granted D summary judgment. P failed to establish that D created a false impression. P appealed.

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