http://www.flickr.com/photos/cdevers/5402217217/in/photostre...
So sure, it's obvious that the shirt's designer used Chris Devers' photo to start with. However, after all the alterations made (turning it into monotone, heavily posterizing it, cleaning it up), I would say it's fair use.
Of course, it would've been nicer if GAP had simply licensed the photo.
On the third hand, this will probably turn out to be one of those situations where The Gap had nothing to do with the design and got it from an external freelancer who passed it off as his/her own.
and the specific Creative Commons license he chose (through Flickr) to apply to the image - http://creativecommons.org/licenses/by-nc-nd/2.0/deed.en_GB
Fairly explicit about attribution, no derivative works, and no commercial use; all three appear to have been violated here by Gap or (as georgemcbay points out) an external freelancer toying around.
Edit: I tend to assume ignorance over malice, so assuming it was a freelancer let's assume they didn't realise their derivative work would ever end up on a Gap shirt. They may have played with the image 18 months ago, stored it somewhere, shared it somewhere, forgotten or mis-remembered its origins, submitted it on an unlikely spec, and 'oh shit, that's right, I shouldn't have done that, and of all the designs I've ever submitted that's the one that gets through!'.
Said freelancer won't be accepted by Gap again. Gap still needs to do something to mitigate the brand impact. Choose whichever is the cheapest of pulling the line, publicly apologising, or offering a token compensation amount (not linked to sales or anything that could be construed as actual licensing of the image) subject to details not being revealed.
Yes, it sucks that his photo was used, but because of the amount of processing done to the photo, it's unlikely that any automated system would have caught the link, if that kind of thing even exists.
I can virtually guarantee that no one from a managerial or corporate level endorsed the theft of Mr. Devers' photo. That's the exact opposite of what managers want, and they're engaged in a battle with their supply chain every day trying to avoid the very thing that has happened here.
