Most likely not. People have a right to their own likeness, and the right to profit off of it with some exceptions.
The problem is the intent not the actual picture.
First, certain people have can’t complain about their likeness being used. For instance, Mr Obama, being president, has no right to profit from his likeness as president, thus you see all the products with his picture on it. This would apply to other politicians as well.
Second, you can legally take a picture of anyone in a public place with no expectation of privacy. But even this has limits. For instance, if I take a picture of someone in a strip mall standing out in front of Bally’s Total Fitness, I have a right to take his picture. This person has no expectation of privacy.
Now if the man was in the club, his right to privacy goes UP, but it’s not exclusive. Because Bally’s charges to get into the club, one could expect a greater amount of privacy,in a club that only admits certain people, but the could not expect total privacy.
Now in Bally’s lockerroom one has a 100% right to privacy. In Illinois it is illegal to take anyone’s photo in a lockerroom, restroom or changing room without their express concent. In other words they have to tell you it’s OK.
So let’s assume the picture is yours legally. Here’s where it gets tricky. What is the selling point of the picture.
Chances are you’d try to sell the picture and the subject would issue a cease and desist order. Now you could quit or keep going and they’d sue you.
When you got to court the judge would look at various things. Most likely the judge would look at, what is the selling point of your photos. If people are buying the photos simply because of the famous person in it, you’d lose.
Now if you could make a case where the famous people in your photo are merely part of a “Greater work of art,” you’d have a chance of winning. For instance, Andy Warhol’s Campbell’s Soup Can painting.
That’s a copyrighted and tradmarked image but Warhol was using it to make a statement, thus he was allowed to do this. 'Cause the image was second to the “art” content.
Though they could sue you right off, no one ever does this. They would issue you a “cease and desist order” and you’d quit or fight on.
This is why copyright and tradmark are so “iffy.” There’s no right or wrong with it. It is only decided when the judge says so, and often very similar cases have opposite outcomes because different judges rule differntly on similar cases.
What I would do is go to the agent and tell them what you want to do. Then offer the agent or company or record company or whoever handles them a percentage of what you make. The artist probably has a standard fee for using his image, expressed in money or percentage