Use of a photo of a celebrity pictured with an author that looks like endorsing the author

Question

Situation (not really me):

Suppose I go to a weekend conference to see the famous Dr Pheel. I buy his book, we shake hands and then I wait in line for an hour to finally proudly get my picture taken next to him.

Then, as an entrepreneur myself, I use that picture on my business website in a gallery, next to the "Tino Robbins and I", "Bryce Tracy and I", and "Bill Clonton and I" pictures, etc.

In this section, besides mentioning these people by name, I don't specify the context and when these pictures were taken. I don't mention either I paid $2000 and bought a $24 book to have access to Dr Pheel. It maybe actually looks like these guys are endorsing me or know me personally.

Question:

Is it legal or acceptable to use pictures of yourself taken at an event with celebrities, without any approval/permission, on a business site and without clearly stating the context? (Even if these pictures are not really used for advertising or directly for a commercial use).

Is that kind of permission or information supposed to be specified when they buy their tickets for the show or is there some general rule for this? Since the celebrity accepts to take the picture, I'm guessing there's still some limits to how it can be used.

I found that answer similar to my question, but I'm not sure if it applies to the situation I'm describing because it's not fully a commercial use:

Is it legal to post a photograph that I captured of a stranger in the street?

^{I often see my clients do this to get some notoriety and even suggesting this to other entrepreneurs in their books or online. I'm asking this question because the editor in my team needs to point to our clients when some stuff shouldn't be published to avoid issues.}

Answer 1

Bottom line

I'd tread pretty carefully here. If you paid $2000 for the photo, you might want to check to see if it came with a licensing agreement.

Background

One way to view this is through the lens of privacy. The Restatement (Second) of Torts § 652A subjects privacy invaders to liability for the resulting harm to the interests of the other. Because you mention public personas and your facts don't involve disclosing private details, negative publicity, or interfering with seclusion, one might think appropriation of name or likeness applies.

Restatement (Second) of Torts § 652C

One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.

Comment (a) to this section explains that a person's identity is in the nature of a property right. Courts have tended to recognize an individual's interest in the exclusive use of his or her own identity, going so far as to require licensing for usage.

The most common way to violate this "property right" is by appropriating someone's name or likeness to promote a business or product. Cases abound on the subject, but a classic one is White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992). To summarize, Samsung ran a picture-based ad featuring a futuristic robot dressed in an evening gown and turning "Wheel of Fortune"-styled letters. Vanna White was nonplussed and brought suit, which she won on appeal. In its opinion, the Ninth Circuit argued the operative question wasn't how Samsung appropriated her likeness, but whether they had done so. The point of citing White here is simply to observe that a person's "likeness" probably extends even further than mere photo reproduction.

Back to your facts: posting actual images of celebrities for a commercial purpose appears a much more clear cut appropriation of likeness than White. While it may seem similar, I'd distinguish your situation from that of restaurant "Walls of Fame"---which showcase signed photos of celebrities with the owner---in that the celebrities you mention weren't using your product or service at the time of the photograph.

You might argue the photos aren't being used for advertising, but the plaintiff would counter that you posted them on a client-facing business website. In the Ninth Circuit this would be a question of whether there was an appropriation, not the way in which it was accomplished.

For argument's sake, assume the court agrees your usage isn't commercial. Even that doesn't necessarily mean you're in the clear. In § 652C, and varying state-by-state, non-commercial purposes are also subject to scrutiny:

Comment (b). Apart from statute, however, the rule stated is not limited to commercial appropriation. It applies also when the defendant makes use of the plaintiff's name or likeness for his own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one. Statutes in some states have, however, limited the liability to commercial uses of the name or likeness.

It's important to remember the Restatement isn't binding: it simply attempts to "restate" what courts (which are binding) have had to say on the topic. If you paid a lot of money for the photo, it might pay to see if it came with a licensing agreement.