This factor distinguishes between factual and fictional works, the latter being regarded as meriting greater protection. See Castle Rock, 150 F.3d at 143-44 (citing cases). As set forth above, the Course is not a factual work, and this factor therefore also weighs against Defendants.
- 3. The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole
This factor also weighs against Defendants. Defendants have copied the entire Workbook, which comprises nearly 40% of the Course. With regard to Defendants' pamphlets, many consist almost entirely of excerpts from the Text. Other pamphlets intersperse substantial verbatim quotations from the text with other material. However, juxtaposing text "wedged between two non-infringing sections" of the secondary work does not constitute fair use. Paramount Pictures Corp. v. Carol Publ'g Group., 11 F. Supp.2d 329, 335 (S.D.N.Y. 1998) ("an illicit copying [cannot] be protected by being placed in the midst of two segments that do not infringe").
- 4. Effect of Use on Value or Market
This factor also clearly weighs against Defendants. Defendants have indicated their desire to distribute the Course
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