Adam Carolla's marketing quandary

On his latest podcast with guest Brad Garrett (from "Everybody loves Raymond"), Adam Carolla came up with a very interesting business point regarding Michael Phelps, as an example.

You remember the picture of Phelps ripping the bong at a University of South Carolina party. Some asshole obviously took the picture and sold it to some bullshit celebrity gossip site for who knows how much money. That site subsequently received a trillion and a half hits, made a fortune on ad revenue and went on with their bush league business.

Consider this, brought up by Carolla. Say I own a sporting goods store. I take a picture of Phelps walking down the street in a Nike sweat suit. I blow up the picture and stick it in the Nike section of my store to sell more attire. Obviously this wouldn't fly; you can't profit off someone else's face without their official endorsement. Surely Phelps should get compensation for my use of his picture. That's a business no-brainer.

Then why can tmz.com (or whoever leaked the Phelps photo) profit off his un-endorsed pot-smoking picture?

Same concept, right?