Scentsy, Inc. v. Harmony Brands, LLC

Where there is a question about whether there is substantial similarity between two ideas in a copyright infringement case, the case cannot be decided at the summary judgment phase. It must be decided by a jury.

Opinion (Noonan, Hawkins, and Gould):

Scentsy, Inc., a candle warmer manufacturer and retailer was sued by Harmony Brands, LLC for copyright infringement and dress infringement. Harmony was granted summary judgment and awarded attorney fees. Scentsy appeals. The lower court erred when it granted summary judgment for the issue of indirect copyright infringement. A jury must decide whether there is “substantial similarity” between two ideas and that is not relevant for decision on summary judgment. The test is "whether an ordinary reasonable observer would consider the copyrighted and challenged works substantially similar."

No court should attempt to apply this test on summary judgment motion, "bypassing the decision of the trier of fact.” With regard to the award of attorney fees, the case must be “exceptional," and a review of whether a case is exceptional is for abuse of discretion. The rule for an exceptional action requires that the plaintiff case be "groundless, unreasonable, vexatious, or pursued in bad faith." Since the features and the doctrines to apply in this case are not clear, this is not an exceptional case.

The award of attorney fees and the grant of summary judgment are REVERSED, the other aspects of the case are AFFIRMED, and the case is REMANDED.