Gap Steal... Copyright Infringement?

The following post discusses copyright issues which arise from this link: http://jezebel.com/5748062/did-the-gap-steal-this-image-from-flickr

     Reflecting upon this particular case, it is apparent that Gap is indeed in violation of copyright due to using someone else's work/ art in order to gain profit.  Firstly, one can tell the image on the baby clothes is in fact the same image as the photograph posted on Flickr.  Not only did Gap not gain permission to use this photograph, they also began to profit off of someone else's image.  It should be noted that as soon as someone creates something, in this case photographs an image, the work (photograph) is automatically copyrighted to the owner.
     Another factor which should be noted is that when someone posts an image on Flickr, they have the option to post either for public use or with rights reserved.  When digging a little deeper on this topic, the photograph was posted with some rights reserved which means that in order to use the photo, credit must be given to the photographer.  Obviously, Gap did not abide by this stipulation.  What surprises me is that Gap would risk getting into trouble over a something such as this.  I'm sure the photographer would have loved to have his work marketed in this way (with credit due him as well as some monetary gain) instead of facing legal repercussions over someone stealing his work.