Well it looks like “Tricky Ricky” has sent The Bigfoot Evidence Blog a Cease and Desist letter.  Since it names me specifically, I’d figure I’d better weigh in.

Of course I’m going to weigh in BIG TIME here…so buckle up!

We are still awaiting confirmation from Shawn over at the blog to verify how this cease and desist letter came into his possession, although unconfirmed, we are suspecting email.

 

law_book2

 

We’ve reviewed the “Cease & Desist” Letter and we’ve come up with some legal and circumstantial evidence that indicates that the “letter” is actually a fraud. (Coming from Rick… who would have thought.)

First it was sent (we’re assuming) by email.

Is Sending An Email A Legal Way To Send A Cease and Desist Letter?

Yes, however, if the matter is serious and you really will take further legal action if your cease and desist order is ignored, do not send an email.

A letter sent via certified, return-receipt will carry more weight in a court than a letter sent without a signature requirement. Emails can be doctored, backdated, and altered.

It can be difficult for a judge to decide which email version is for real: yours or the one the defendant says is different (and may have doctored.)

Source: http://womeninbusiness.about.com/od/copyrightlaws/a/Can-Send-Email-Cease-Desist-Order-Letter.htm

Second, the cease and desist letter claims there are 3 elements to defamation.

CEASE AND DESIST ALL DEFAMATION OF
Rick Dyer CHARACTER AND REPUTATION.
Rick Dyer has learned that you have engaged in spreading false, destructive, and defamatory rumors about him and or his organization.
Under California Law , it is unlawful to engage in defamation of another’s character and reputation. Defamation consists of
(1) a statement that tends to injure reputation;
(2) communicated to another; and
(3) that the speaker knew or should have known was false.

Source: http://bigfootevidence.blogspot.com/2012/11/cease-and-desist-all-defamation-of-rick.html

 

Defamation law in California is defined by Cal. Civ. Code § 45a, hmm, is it a coincidence that a letter from an alleged attorney would neglect to actually mention the section of law they were claiming?

Further, what the letter lacks is any definitive examples of such a defamation. The letter claims defamation but lacks the element of definition and very poorly tries to argue Fair Use, stating the “ Tent Video,” has been used improperly.

So what kind of Cease and Desist Letter is this, Fair Use or Defamation?

 

In fact there are five elements of defamation in California.

California Elements of Defamation

Defamation, which consists of both libel and slander, is defined by case law and statute in California. See Cal. Civ. Code §§ 44, 45a, and 46.

The elements of a defamation claim are:

  1. publication of a statement of fact
  2. that is false,
  3. unprivileged,
  4. has a natural tendency to injure or which causes "special damage," and
  5. the defendant‘s fault in publishing the statement amounted to at least negligence.

Source: http://www.citmedialaw.org/legal-guide/california-defamation-law

But you see..Ricky has to get up earlier in the morning to fool us here…

In MINNESOTA, there are 3 elements of Defamation.

And how do we know that?

This morning, after a little mousing around, I found the template, (including a gender change cited in BFE Blog here) Ricky used.

Here’s the downloadable template (for Minnesota) found on the web:

CEASE AND DESIST
[DATE]
By Certified Mail
Ms. Jane Doe
[STREET ADDRESS]
[CITY], [STATE] [ZIP]

Dear Ms. Doe:
This law firm represents [CLIENT NAME]. If you are represented by legal counsel, please direct
this letter to your attorney immediately and have your attorney notify us of such representation.
You are hereby directed to

CEASE AND DESIST ALL DEFAMATION OF
[CLIENT NAME]’S CHARACTER AND REPUTATION.

[CLIENT NAME] is an educated, respected professional in the community. She has spent years
serving the community in her profession and building a positive reputation. [CLIENT NAME] has
learned that you have engaged in spreading false, destructive, and defamatory rumors about her.

Under Minnesota law, it is unlawful to engage in defamation of another’s character and
reputation. Defamation consists of
(1) a statement that tends to injure reputation;
(2) communicated to another; and
(3) that the speaker knew or should have known was false.

Your defamatory statements involved [CIRCUMSTANCES AND/OR DESCRIPTION OF
DEFAMATORY STATEMENTS].
Accordingly, we demand that you (A) immediately cease and desist your unlawful defamation of
[CLIENT NAME] and (B) provide us with prompt written assurance within ten (10) days that you will cease and desist from further defamation of [CLIENT NAME]’s character and reputation.

If you do not comply with this cease and desist demand within this time period, [CLIENT NAME] is entitled to seek monetary damages and equitable relief for your defamation.

In the event you fail to meet this demand, please be advised that [CLIENT NAME] has asked us to communicate to you that she will pursue all available legal remedies, including seeking monetary damages, injunctive relief, and an order that you pay court costs and attorney’s fees. Your liability and exposure under such legal action could be considerable.

Before taking these steps, however, my client wished to give you one opportunity to discontinue your illegal conduct by complying with this demand within ten (10) days. Accordingly, please sign and return the attached Defamation Settlement Agreement within ten (10) days to

[FIRM NAME][FIRM ADDRESS]
[FIRM CITY, STATE, ZIP]

I recommend that you consult with an attorney regarding this matter. If you or your attorney have any questions, please contact me directly.

Sincerely,
[NAME]

Source: http://www.aaronhall.com/blog/wp-content/uploads/2012/01/DefamationCeaseandDesist-2.pdf

Now let’s look at Ricky’s Cease & Desist… with the gender change in yellow, and we’ve highlighted in blue the same verbiage used in the template. (You be the judge but it looks like the same cut and paste one we found!)

 

CEASE AND DESIST
11/19/2012
Bigfoot Evidence
Sacramento ,CA 94203

Dear To whom it may concern

You are here by directed to

CEASE AND DESIST ALL DEFAMATION OF
”Ricky”**
CHARACTER AND REPUTATION.

“Ricky”**has learned that you have engaged in spreading false, destructive, and defamatory rumors about him and or his organization.

Under California Law , it is unlawful to engage in defamation of another’s character and reputation. Defamation consists of (1) a statement that tends to injure reputation; (2) communicated to another; and (3) that the speaker knew or should have known was false.

Your defamatory statements involved false statements, Spreading false Statements by you and or others ( Steve Kulls,TTBF, ECT.)

Accordingly, we demand that you (A) immediately cease and desist your unlawful defamation of “Ricky”**and (B) provide us with prompt written assurance within 24 Hrs that you will cease and desist from further defamation of “Ricky”**character and reputation.

If you do not comply with this cease and desist demand within this time period, “Ricky”**is entitled to seek monetary damages and equitable relief for your defamation($250,000). In the event you fail to meet this demand, please be advised that “Ricky”**has asked us to communicate to you that she will pursue all available legal remedies, including seeking monetary damages, injunctive relief, and an order that you pay court costs and attorney’s fees. Your liability and exposure under such legal action could be considerable.

Before taking these steps, however, my client wished to give you one opportunity to discontinue and remove your illegal conduct by complying with this demand within 24 Hrs.

“Ricky’s Website”** 849 Mantis Way Suit #4
Las Vegas, NV 89110
702-460-4296

We are prepared to retain
Murphy, Campbell, Guthrie & Alliston
8801 Folsom Boulevard, Suite 230
Sacramento, CA 95826
(916) 400-2300

Murphy,Campbell, Guthrie & Alliston   
8801 Folsom Boulevard, Suit 230
Sacramento, CA 95826
916-400-2300

CEASE AND DESIST ALL USE OF THE CAMPER/TENT VIDEO
Also we have secured a copyright for (Ricky’s phony video) from the Liberty of Congress Copyright office on 11/14/2012. This video does not fall under Title 17 of the U.S. Code, (fair use act).

Murphy, Campbell, Guthrie & Alliston
8801 Folsom Boulevard, Suite 230
Sacramento, CA 95826
(916) 400-2300

Murphy, Campbell, Guthrie & Alliston
8801 Folsom Boulevard, Suite 230
Sacramento, CA 95826
(916) 400-2300

** Note…we have removed Ricky’s name and website from the article, because we do not want to give more infamy to Ricky’s already infamous reputation.

Source: http://bigfootevidence.blogspot.com/2012/11/cease-and-desist-all-defamation-of-rick.html

Wow, it doesn’t bear a formal address to a person nor does it have a specific person it was written by… can we all together say, “Paralegal Faux Pas”

Speaking of Faux Pas…did anyone notice his address…

suit 4

849 Mantis Way Suit #4

Now if Ricky did this letter up implicating in several places, that it was written by the law firm, he may be in for a defamation suit of his own given the legal prowess exhibited.

Since Ricky lives in Nevada now he better watch what he posts too because in NEVADA, libelous claims can be considered CRIMINAL:

The legal definition of "libel" in Las Vegas, Nevada, is "a malicious defamation, expressed by printing, writing, signs, pictures or the like, tending to blacken the memory of the dead, or to impeach the honesty, integrity, virtue, or reputation, or to publish the natural defects of a living person or persons, or community of persons, or association of persons, and thereby to expose them to public hatred, contempt or ridicule." (NRS 200.510)

Libel can occur through any publishing medium such as newspapers, books, billboards, websites, social media such as Facebook or Twitter, and even emails. Also note that editors who knowingly publish libel face the same criminal liability as the writer(s) who fabricated the lies to begin with.

Alleged violations of Las Vegas libel law under NRS 200.510 are prosecuted as agross misdemeanor in Nevada. The punishment includes:

  • up to 1 year in jail, and/or
  • up to $2,000 in fines

Source: http://www.shouselaw.com/nevada/libel.html

In short, the Nevada crime of libel occurs when all of the following conditions are met:

  • the defendant publishes untruths about someone else
  • the defendant acted intentionally
  • these untruths cast the person in a negative light

It appears Ricky’s copying and pasting skills are a bit amiss, when he copied and pasted the same address twice from the attorney’s website, when he probably meant to paste it like this:

addy1

 

Enough on Ricky’s lack of internet, copy and paste finesse.

If you parse the letter carefully, you see that it states, if it is NOT done he will retain the above attorney, however a web search reveals that the law office does not handle this type of dispute.  But in the “copyright” section they state, “we have secured.” See liars can never keep their story straight.

Funny, usually an attorney has to actually take a case before you can start throwing his name. I wonder how they felt if they received a phone call from interested parties, wondering if they are Ricky’s attorneys, and if they wrote the “Cease and Desist” letter. Could this result in Ricky getting a “Cease and Desist” of his own?

BTW… as to the copyright thing, he lost, even if he did copyright it. He posted it publicly under a false name, later admitting it was him, BEFORE APPLYING FOR THE COPYRIGHT. So he may have grounds if he really did copyright it, provided it was posted after the copyright date.

Let’s look at the “Fair Use Doctrine:”

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.

Source: http://en.wikipedia.org/wiki/Fair_use

Now we must ask the following questions:

  • Has the film been legitimately copyrighted?
  • If so, shouldn’t any cease & desist letter should contain the copyright number which can be verified?
  • Was the use, used for criticism, comment and news reporting? (YES)
  • Was the use used for education and research? (YES)
  • Isn’t the video linked to someone else’s account (FB/FB)?
  • Doesn’t it seem biased how he doesn’t demand the only positive review of the film by FB/FB to be removed?
  • This letter, since it implies it is from an attorney at least in the copyright, considered to be harassment if it is proven to be false? (And all we need to do is make a phone call to check on the validity.)

Weak grounds Ricky…very weak.

Now back to the defamation….

Unfortunately, for Ricky, thanks to his stunt in 2008, he has become what California considers a “person of notoriety” or “public figure.” There’s enough evidence of that with pictures we have of his vehicles stating, “As Seen on TV,” amongst the other various networks he claimed to be on.

 

In New York it is very clear that Ricky is a Limited Purpose Public Figure:

Limited-Purpose Public Figures

The second category of public figures is called "limited-purpose" public figures. These are individuals who "have thrust themselves to the forefront of particular controversies in order to influence the resolution of the issues involved." Gertz v. Robert Welch Inc., 418 U.S. 323 (U.S. 1974). They are the individuals who deliberately shape debate on particular public issues, especially those who use the media to influence that debate.

Source: http://www.citmedialaw.org/legal-guide/proving-fault-actual-malice-and-negligence#limitedPublicFigures

In New York it even goes on to say this about public figures, limited or otherwise:

New York courts rely heavily on the "vortex" notion of a limited-purpose public figure. See James v. Gannett Co., Inc., 40 N.Y.2d 415 (N.Y. 1976) ("The essential element underlying the category of public figures is that the publicized person has taken an affirmative step to attract public attention.").

Source:  http://www.citmedialaw.org/legal-guide/new-york-defamation-law

In a Limited-Purpose Public Figure, defamation would be limited to the following two grounds:

Actual Malice
In a legal sense, "actual malice" has nothing to do with ill will or disliking someone and wishing him harm. Rather, courts have defined "actual malice" in the defamation context as publishing a statement while either
  • knowing that it is false; or
  • acting with reckless disregard for the statement’s truth or falsity.

Source: http://www.citmedialaw.org/legal-guide/proving-fault-actual-malice-and-negligence

That’s why we cite sources for our conclusions here! Our question of why does he do this, is a valid question to be explored relevant to the controversies Ricky puts himself in.

This significantly decreases the likelihood of a successful defamation suit in the United States… you see… the backing of the definition comes from a U.S. Appellate Court.

Till Next Time…

Squatch-D

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