in this case. Defendant’s quantitative takings are relatively small— SCQuARE for Dummies contains much less material than the copyrighted SCQuARE Manual, and SCQuARE and the Continuous Promise is even less inclusive. (PL’s Mot. [67] at Exs. 1,13, and 16.) Both works are designed to be presented in approximately half an hour, as opposed to the 24 to 26 hour training required to present the material in the SCQuARE Manual. (DSMF [48] at ¶¶ 12, 27, 29.) On the other hand, SCQuARE for Dummies, and to a lesser extent SCQuARE and the Continuous Promise, incorporate, and were intended to convey, the very essence of the SCQuARE Manual. (Id.; PL’s Mot. [67] at Exs. 13 and 16.) Thus, defendant’s qualitative takings are arguably significant. See Harper & Row, 471 U.S. at 565-66, 105 S.Ct. 2218 (<HOLDING>), and Cable/Home Commc’n Corp. v. Network
recognizing that the fact that a substantial portion of the infringing work was copied verbatim is evidence of the qualitative value of the copied material holding that the two elements of a copyright infringement claim are 1 the plaintiff owns a valid copyright right and 2 the defendants copied constituent elements of the work that are original holding that defendant who had copied plaintiffs perfume formula had a right to market it under defendants name because it identified to public plaintiffs product as competition holding that where the plagiarized material comprised 35 of the work and the commercial value of the whole was likely attributable in some part to the remaining 65 percent 50 percent of the profits were allocated to the infringing material holding that the third factor disfavored fair use because the defendant copied a qualitatively substantial portion of the original work even though the defendants copied only approximately 300 words out of the 200000 words in the plaintiffs work