The 111 th Congress did not pass legislation that would have amended Chapter 13 of the Copyright Act to extend design protection to fashion design, the Design Piracy Prohibition Act ( H.R. The 112 th Congress may consider similar legislation. The U.S. Both the patent and trademark law regimes provide limited means for protecting fashion design. 2196 ) and the Innovative Design Protection and Piracy Prevention Act ( S. 3728 ) would have amended the Copyright Act to provide a three-year term of copyright protection for fashion designs. Both H.R. The definition of "apparel" is broad, encompassing articles of men's, women's, and children's clothing, including undergarments, and outerwear, gloves, footwear, and headgear. Additionally, the term covers handbags, purses, wallets, duffel bags, suitcases, tote bags, belts, and eyeglass frames, rendering these items eligible for protection. However, the bills defined "fashion design" differently; S. 3728 mirrored H.R. The original elements of the article of apparel or the original arrangement or placement of original or non-original elements must
be the result of a designer's own creative endeavor; and provide a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles. 2196 . In addition, unique to H.R. Instead, protection arises under S. 3728 upon the design's creation. Searchable Database for Fashion Designs

H.R. 2196 would have required the Register of Copyrights to establish and maintain a computerized database containing information regarding protected fashion designs. Finally, the legislation required that such database be made available to the public without a fee or other access charge. S. 3728 contained no similar provision. Designs Not Subject to Protection

Section 1302 of the Copyright Act denies protection for a design that is 
(1) not original;
(2) staple or commonplace, such as a standard geometric figure, a familiar symbol, an emblem, or a motif, or another shape, pattern, or configuration which has become standard, common, prevalent, or ordinary;
(3) different from a design excluded by paragraph (2) only in insignificant details or in elements which are variants commonly used in the relevant trades;
(4) dictated solely by a utilitarian function of the article that embodies it; or
(5) embodied in a useful article that was made public by the designer or owner in the United States or a foreign country more than 2 years before the date of the application for registration. In contrast, S. 3728 would have made protection unavailable for a fashion design that was made public before the enactment of the bill or more than three years before the date upon which protection of the design is asserted. H.R. Additionally, both bills added protection for images of fashion designs as well as for the designs themselves, stipulating that an article is infringing if its design was copied, without the consent of the design owner, from a protected design itself "or from an image thereof." However, the bills expressly excluded from this definition an illustration or picture of a protected design in an advertisement, book, periodical, newspaper, photograph, broadcast, motion picture, or similar medium. H.R. 2196 provided several limitations on infringement liability: 
if the allegedly infringing article is original and not closely and substantially similar in overall visual appearance to the protected design; if the allegedly infringing article reflects a trend (defined by the bill as a newly popular concept or idea expressed in a wide variety of designs of apparel that are in immediate demand); or if the allegedly infringing article is the result of independent creation. S. 3728 would have established slightly different limitations on liability: (1) if the allegedly infringing article is not "substantially identical" in overall visual appearance to the original elements of a protected design (that is, the article would not likely be mistaken for the protected design because the article contains only differences in construction or design that are merely trivial); (2) if the article is the result of independent creation; or (3) if a person produces a single copy of a protected design for non-commercial personal use or for the use of an immediate family member (the "home sewing exception"). 2196 would leave unchanged the current statutory prerequisite of registering the design prior to filing an infringement suit.
Fashion design does not currently receive explicit protection under U.S. copyright law. Limited avenues for protection of certain types of apparel designs can be found through trademark and patent law, though proponents of copyright protection for fashion design argue that these limited means are insufficient. The 111th Congress did not pass legislation that would have provided a three-year term of copyright protection for fashion designs, the Design Piracy Prohibition Act (H.R. 2196) and the Innovative Design Protection and Piracy Prevention Act (S. 3728). This report analyzes these two legislative proposals. The 112th Congress may consider similar legislation regarding fashion design protection.
The bills resembled each other although contained differences. For example, for a fashion design to receive protection under H.R. 2196, the designer must register the design with the U.S. Copyright Office; S. 3728 contained no such registration requirement. Instead, protection arises under S. 3728 upon the design's creation, although the design must be a sufficiently "unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles." This is a more restrictive definition of "fashion design" compared to H.R. 2196.
Both bills offered copyright protection for the appearance of an article of apparel as well as its ornamentation. They broadly defined the term "apparel" to mean the following: clothing (including undergarments, outerwear, gloves, footwear, and headgear), handbags, purses, wallets, tote bags, belts, and eyeglass frames. H.R. 2196 would have denied protection to fashion design that had been embodied in a useful article that was made public by the designer in the United States or a foreign country more than six months before the date of the application for registration. In contrast, S. 3728 would have denied protection if the design was made public prior to the enactment of the bill or more than three years before the date upon which protection of the design is asserted. H.R. 2196 would have required the Register of Copyrights to establish and maintain an electronically searchable database of protected fashion designs; such database must be made available to the public without a fee or other access charge. S. 3728 contained no similar provision.
Both bills would have prohibited the creation, importation, sale, or distribution of any article whose design has been copied from a protected fashion design (or from an image of it), without the consent of the registered design owner. Such activity would have been considered an infringement of the fashion design owner's rights, and the adjudged infringer would have been subject to damages of the greater of: $250,000 or $5 per copy (under H.R. 2196) or $50,000 or $1 per copy (under S. 3728). H.R. 2196 provided several limitations on infringement liability: (1) if the allegedly infringing article is original and not closely and substantially similar in overall visual appearance to the protected design; (2) if the allegedly infringing article reflects a "trend" (defined by the bill as a newly popular concept or idea expressed in a wide variety of designs of apparel that are in immediate demand); or (3) if the allegedly infringing article is the result of independent creation. S. 3728's limitations on liability were slightly different: (1) if the allegedly infringing article is not "substantially identical" in overall visual appearance to the original elements of a protected design (that is, the article would not likely be mistaken for the protected design because the article contains non-trivial differences in construction or design); (2) if the article is the result of independent creation; or (3) if a person produces a single copy of a protected design for non-commercial personal use. In addition, both bills expressly stated that an infringing article is not an illustration or picture of a protected design in an advertisement, book, periodical, newspaper, photograph, broadcast, motion picture, or similar medium.