£10,000 Pounds Sterling

I see what you did there! Oh wait, I can't see anything, you blinded me with stupidity.

I received an extortion e-mail from Rik and Diane Stirling “Collie Breeders in Minnesota.”  They want me to pay over $16,000.00 to them to “license” the images I used in my recent post If thy Collie Eye offends thee. In a rather half-assed attempt to sound legal and threatening, the Stirlings stole a demand letter that Getty Images sends out to scare websites who use their images without paying.  The Getty Images letter is so infamous there’s a whole website devoted to combating their overzealous tactics called “Getty Images Extortion Letter Info.”

The Stirlings basically copied the letter word for word but replaced “Getty Images” with “Stirling Collies.”  They claim that I failed to license 14 images and that they want $16,450 for the use to-date and even more money if I wish to continue to use the images.  That’s almost exactly ten thousand British Pounds Sterling.

We would consider a settlement for your unlicensed use of the attached images in the amount of $1,175.00 per image (which is usual and customary for proper compensation for the intellectual property rights) if a license cannot be provided. Payment of the demand will settle your unlicensed use of the referenced image(s). Payment must be received within 14 days of the date of this communication. Payment can be made electronically through the Stirling Collies website, or by Certified Check. Please advise us as to your preferred method of payment.

Please note that ceasing use of the image(s) does not absolve you of your responsibility to pay for the image(s) already used without a license. Stirling Collies is willing to discuss the circumstances surrounding this matter; however, absent appropriate licenses, Stirling Collies expects to be fairly compensated for the use of the image(s) in question.

If, after settlement, you would like to continue using the image(s), we can assist you with licensing the image(s) for future use.

With regards to the content of your posting, we will reserve reparations that may be legally pursued. Please note that this communication is without prejudice to Stirling Collies rights and remedies, all of which are expressly reserved.

This marks the fourth lawsuit threat leveled against me this year alone. Heidi Mobley threatened legal action over The Unfortunate Case of the Wild Australian Shepherd, and Gerald Roach threatened to sue over Brackett’s Formula: Nothing Special as did Donna Beadle.

Nothing ever comes of these legal threats, and nothing ever will.  None of the images in question were even removed from the webpage by my hosting company: a pretty low bar to hurdle.  All of the images I use and the manner I use them in falls under Fair Use.

BorderWars 4, Litigious Luddites 0.

Such threats have no legal significance or consequence other than being tactics to intimidate me into silence.  Every single one of the threats included clear indication that the action was being taken not over principle or even concern for copyright, but because the complainants didn’t like the content of my speech.   The demand for money, especially when it is done in bad faith also constitutes extortion.  And most of these complaints are in bad faith.  The claimants aren’t seeking to defend their intellectual property, they are trying to silence criticism.

A common example of bad faith claims are those made without standing.  If a Litigious Breeder posts a photo of their dog winning a ribbon at a dog show on their breeder website, they don’t have any claim whatsoever over that image’s copyright, even if they’re in it and it’s their dog being shown.  They don’t have standing to make a claim of copyright infringement because they don’t own the copyright.

For works where the complainants do own the copyright, they’ll need to register the works with the Copyright Office for $50 each if they hope to bring an infringement case and collect damages.  The registration also takes almost a year to be processed.  I doubt the Stirlings have spent $700 to register the 14 images they claim to own and given that the images are of weeks old puppies, it’ll be next summer before they could hope to bring a case.  They will also need to front the money to hire an attorney to send me more threatening letters prior to fronting even more money to file a case (which could easily run several thousand dollars or more).

And they would lose that case.

Title 17 Section 107 of the US Code details Fair Use, which is an exception to and limitation of the exclusive copyright granted to the authors of a creative work.  Fair Use allows me the right to use otherwise copyrighted works without acquiring permission from the copyright holders.

17 U.S.C. § 107

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.^[1]

My use of the images clearly passes the initial requirement that the Fair Use be used for criticism, comment, news reporting, teaching, scholarship, or research.  I am criticizing the animals depicted in the photos, commenting on the poor breeding decisions which lead to their unfortunate creation, news reporting their existence for sale in a timely manner, teaching the public about how these animals came about and the genetics underlying their disability, performing scholarship and research into the prevalence of this practice among breeders, and more.

Next we consider the four factors.

1. Does my use stimulate creativity for the enrichment of the general public? Yes.  Does my use aim to only “supersede the objects” of the original for reasons of personal profit? No.  Is my use transformative? Yes.  Is my use derivative? No.  Does my work parody the breeder’s product and the values they represent? Yes.

2. Is my use socially useful? Yes.  Is the public interest served in my use more than the protections of copyright? Yes.  Has the work been previously published? Yes.  Is my use the first public revelation of the work? No.  Was the work originally published for a profit? No.  Was the original work published for free on the Internet? Yes.

3. Does my use represent a substantial copying of the original work(s) of the author? No.  Did I only copy as much as was necessary for my intended use? Yes.

4.  Does my use infringe on the copyright owner’s ability to exploit their original work? No.  Despite copying the threat letter of a business which sells stock photography as their sole and primary purpose, the Stirlings are not professional photographers nor is it likely that they have ever sold even a single photograph nor licensed one for use online.  Nor does my use in any way infringe upon the market value of the images, not only because they have no market value, not only because the Stirlings do not engage in the business of selling photographs, but also because my use does not supply a third party with access to the image that they could not get for free at the original webpage.  My use does not afford my readers the ability to avoid paying a customary price charged to view the works, as there is no price charged by the complainants.  Is my use a direct market substitute for a the original work? No.  Does my use harm an existing licensing market? No.

My negative review and parody of the Stirling’s website and the images therein might harm the market value of the images should the Stirlings attempt to go into that business, but copyright does not protect a work against adverse criticism and harming the market for the images by criticizing them and discussing them does not oppose fair use.

Not only does my use meet the initial criteria for Fair Use, it also abundantly satisfies each of the four factors (not that it needs to).

It is clear that the Stirlings have no case, so their pursuit of damages and threats of legal action is clearly a case of a SLAPP strategy.  Strategic Lawsuits Against Public Participation are designed to silence criticism by intimidating those who express unfavorable speech.  The goal is not to win a lawsuit (in this case to protect copyright), but to remove my speech from the public sphere and prevent me from participating in public debate over the ethics and results of the Stirling’s breeding program and others like them.

Have you seen me? I can't see you. And I'm probably dead.

In other Stirling Collies news, the litter website no longer features three defective white puppies, there are now only two listed and any reference to the third puppy has been removed.  It’s very sad that another victim has succumbed to horrible breeding practices which produced intentionally disabled puppies with a decreased ability to thrive for no good reason.

There were 3 defective puppies before.

Now there are only 2 defective puppies. What happened?

These diseased puppies are not an act of a caring and all knowing God, they are the act of a callous and backard thinking human.  They can’t even claim ignorance as they document their knowledge of the harm they might cause right on the litter page.

Unfortunately, these 3  2 White Collies can possibly be defective whites, which can happen when a merle x merle are bred (statistics are 25% chance for defective whites (no coloring or pigmentation) when breeding a merle to merle together).

Remember, this is a breeder who not only wants you to spend good money on poorly bred puppies to support their desire to breed merle to merle, they are claiming to be doing God’s work by blissfully creating seriously impaired puppies and they have threatened to sue me for over $16k for simply questioning their breeding practices.  Is this “declaring” God’s works or defiling them?

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