The issue then is this: since a photograph almost always contains products that were created by someone else (i.e. cars, buildings, businesses, clothes, jewelry, musical instruments, and such), is it fair to say that in order to sell any picture, the photographer must track down all of those individual "manufacturers" to get permission? Say you take a picture of a teen for their senior picture, you've done the shoot downtown and in one shot there is a Coca Cola sign. Do you then need to get permission from Coca Cola to sell that image to the client? Do you need to get permission from the clothing manufacturer? What if it's a street shot and there just happens to be a VW Jetta in the backgrouond, do you need to try to get permission from VW to sell the image to the client.
Personally, this needs to be taken as an "intent of the law" rather than the "letter of the law". Obviously the portrait photographer is "making money" off the clothes the teen wears, but than isn't their intent. And I highly doubt many clothes manufacturer's would sue the portrait photographer. The same goes for the motorsports photographer. Sure, I am making some money off the fact that a particular rider/driver is in a particular manufacturer's vehicle. But the intent is not to use that manufacturer's reputation to make money. I don't care if the guy is driving a VW or a Toyota.