Small-town Star Trek museum teaches American cultural history, limits of fan fair use in copyright law

I have the con at the Star Trek Original Series Set Tour, Ticonderoga, N.Y., Oct. 2025
(all photos RJ Peltz-Steele CC BY-NC-SA 4.0)

The sleepy town of Ticonderoga, nestled between Lake Champlain and Lake George in upstate New York just south of the Adirondacks, is the unexpected home of a treasure of American history. 

I don't mean the historic Fort Ticonderoga of the American revolutionary era. 

The Star Trek Original Series Set Tour offers visitors an incomparable experience in television history and a lesson in intellectual property law along the way.

Though the transporter was conceived to save money on
prop shots of shuttle landings, it still cost (1966) $600
per effect per person. That's one reason why red shirts
didn't beam down unless they had, let's say, business on
the planet. Regular-cast shots could be recycled. The
platform circles were made with glass from old spotlights.
It's wild to see close up how clever prop crew were with
what they had on hand.

Star Trek in a Small Town 

I've written many times about the relevance of Star Trek to American law and public policy from the civil rights era to today. The Set Tour is the passion project of Star Trek superfan and Ticonderoga native James Cawley, an Elvis impersonator by trade. Cawley is someone who deeply appreciates Trek's cultural importance and has played a role in ensuring that the franchise survives and lives up to its legacy.

Inside the inconspicuous shell of a former Family Dollar in downtown Ticonderoga, Cawley has recreated the Desilu Studios set of the original Star Trek series of the 1960s in astonishing detail, down to the illuminated, colorful "gumdrop" buttons of starship Enterprise control panels.

Little survived from the original 1960s set. At that time, creators still thought about television productions as one-off broadcasts. Syndication was known, but shows were not yet designed for it. Moreover, few critics would have picked Star Trek, a curious experiment in sending Wagon Train to space, as a show that would stand the test of time. 

In fact, Star Trek's perceived ephemerality became a challenge in reconstructing the set, a Set Tour guide explained. The original series had no script supervisor in charge of continuity, mostly because no one expected viewers would see a Star Trek episode for a second time to notice details. A prop that was a scary alien computer in one episode was gently repurposed to be an Enterprise control system in another. Budgets were thin, too, so prop supervisors were ingenious recyclers.

Cawley long collected the few artifacts and set fragments that remained. In the early 1990s, he worked his way into an assistantship with legendary costume designer William Ware Theiss, then working on Star Trek's reincarnation in The Next Generation. Theiss had, and gave to Cawley, discarded blueprints of the 1960s set, as well as original series uniform patterns. Cawley found his calling and embarked on recreation of the set with excruciating attention to detail.

Sickbay: My guide was terrific, knowledgeable and full of lore.
Here the medical scanner is CGI, but in the 1960s, a grip was
needed just to move the little white indicators up and down
from behind the wall.

A Golden Age of Fan Fiction 

Homage to the past, though, was not Cawley's sole design. In the early 20-aughts, he became the founding producer and "Captain Kirk" star of a Star Trek fan production, New Voyages, later known as Star Trek: Phase II. The highly regarded fan franchise published online 10 episodes from 2004 to 2016, and many original series talents contributed to the show, such as writer David Gerrold and actors George Takei (Hikaru Sulu), Walter Koenig (Pavel Chekov), and Grace Lee Whitney (Janice Rand).

That's where things get interesting from the intellectual property perspective.

Star Trek brand owners Paramount, CBS, and Viacom—their corporate relationships shifted over the years—had mixed feelings about Star Trek fan productions. There were many, though none besides New Voyages had fixed sets.

When Star Trek's popularity waned, fan fiction kept the franchise alive in public imagination. As long as fan projects were not for profit, the corporations were content to look the other way, even striking an agreement at one time with New Voyages. But when Paramount, et al., were on the verge of a new Star Trek TV or film project, they tightened the reins.

The corporate equivocation, in tandem with a committed and creative fan base, allowed Star Trek fan fiction to thrive in a way that is uncommon in the American entertainment space. Nevertheless, corporate indulgence started to wane after J.J. Abrams took the helm of the 2009 film Star Trek and revitalized the franchise. 

 The recreation of Engineering is two stories high, as was the
original after it was augmented for Original Series season 2.
The warp core is about 12 feet deep but looks deeper
because of a forced-perspective design to fool the camera.

Copyright Showdown

Things came to a head in 2015. Alec Peters, an actor in Phase II, raised money and excitement around a new fan-film project, Star Trek: Axanar, teased by a compelling 2014 short, Prelude to Axanar (IMDb). With advances in technology, the production quality of fan films was by then quite good. Paramount meanwhile was closing in on 2016 release of a new feature film in the reboot universe, Star Trek Beyond, and a new TV series, Star Trek: Discovery, was slated for launch in 2017. In the last days of 2015, Paramount sued Peters and the Axanar project for copyright infringement.

The copyright case, and to a lesser extent the trademark case, on fan fiction is really open and shut. Profitable or not, the take-offs are not permissible without license by the rights-holder. There is a fuzzy line at the outer boundary of copyright, where protection of creative product gives way to "the scènes à faire doctrine." But it's not that fuzzy.

Law school learning on copyright impresses on students that eligible works must be "fixed in a tangible medium of expression." That does not mean, however, that only that which is committed to print or film is what is copyrighted.

Fictional facts and storylines also may come within copyright protection. Thus, the estate of Anne Rice can claim copyright over the story of a young vampire who shacks up with the master who turned him, adopts a vampire child, and later gives a tell-all interview. But the scènes à faire doctrine ensures that copyright does not remove mere tropes from the public domain. The Rice estate cannot claim copyright infringement in all stories about blood-sucking, undead creatures who cannot tolerate sunlight.

To put that in Star Trek terms, anyone is free to write a story about a human-led inter-species alliance of space-faring civilizations that explores the galaxy and maintains uneasy relations with warlike enemies. But the closer the author gets to a San Francisco-headquartered federation of planets with warp-drive starships, transporters, phasers, and emotion-averse characters with pointy ears, the more the risk of copyright infringement. The line is fuzzy, but it's not wide.

The problem for fan fiction always is that the stories fans want to tell are the stories that explore the boundaries of the established narrative, the existing fictional universe, and ideally, of the recognizable characters in it. That's exactly what copyright does not allow. 

Many scholars have argued for more expansive interpretation of fair use to allow for fan creativity in the presence of clear disclaimer. There's a whole book about the problem of fan fiction in historical and multi-national perspective by California Western Law Professor Aaron Schwabach. The last chapter of Schwabach's book is titled tellingly, "Fanfic: The New Voyages."

Archivist and professor emeritus in cinema studies at NYU, formerly at UCLA, Howard Besser made the case as to Star Trek in particular, besides other popular properties, such as Harry Potter, that the public commons should be larger. He called out corporate owners such as Viacom and Paramount for overreach with unjustifiably aggressive cease-and-desist letters.

But the fact and law remain, protection of fan work that plainly takes place in the same universe as copyrighted works, even when disclaiming ownership and avoiding recognizable names of fictional places and characters, and omitting trademarked titles, still is a non-starter. The analysis is of the totality. Nena may invoke Captain Kirk passingly in "99 Luftballons," but a fan film in the Star Trek universe treads too far.

The Treaty of Axanar 

It was no surprise, then, that the federal court in Paramount Pictures Corp. and CBS Studios, Inc. v. Axanar Productions, Inc. and Alec Peters refused the defendants' motion to dismiss in May 2016. The case over Axanar was careening toward a jury trial, the parties arguing heatedly over evidence and jury instructions, when suddenly, in the third week of January 2017, Paramount and Peters settled.

Out of the Axanar settlement came a remarkable new document, which articulated and still states the boundaries around what Paramount and CBS will tolerate in Star Trek fan fiction. The guidelines stated severe new limits, including:

• The duration of a fan production is limited to 15 minutes, or one story in two parts for 30 minutes, "with no additional seasons, episodes, parts, sequels or remakes."
• The work may not have "Star Trek" in the main title and must be subtitled, "A STAR TREK FAN PRODUCTION."
• No Star Trek content content may be used, and Star Trek-recognizable costumes and props must be official Star Trek merchandise.
• No creator or actor ever employed in a licensed Star Trek production may work on the project, and no one working on the project may be paid.
• A production must be non-commercial with a budget from fundraising limited to $50,000.

Described by fan fiction enthusiasts as "draconian," the new guidelines made impossible the production of projects fans had come to love. It seemed that no film such as Axanar could proceed. Serial projects such as Phase II had to call it quits. The golden age of streaming Star Trek fan fiction was over.

Prelude to Axanar
movie poster
(presumed ©; illustrative use)

Axanar Fal-Tor-Pan?

Yet, for better or worse, the Paramount-CBS guidelines were far from the last word on Axanar. Secret arbitration over money raised for Axanar followed the 2017 settlement. In 2023, Paramount sued Peters in California Superior Court in Los Angeles, alleging that he never stopped raising money for an Axanar film, and asking the court to affirm the outcome of the arbitration. 

Peters did not appear, and the court entered Paramount's desired order in February 2024. Rights-holder copyright consultant Jonathan Bailey, founder of CopyByte, wrote about the case for his Plagiarism Today. Fans follow developments around Peters and Axanar in the public Facebook group page, AxaMonitor.

Meanwhile, production on Axanar most definitely continued. Six days after Paramount had its way in court in Los Angeles, Axanar wrapped filming on its set, Jonathan Lane reported on his Fan Film Factor. Peters himself gives monthly updates on Axanar on YouTube. 

In the October 2025 Axanar update, posted on October 17, Peters reported on post-production progress on the latest installment of Axanar, to follow Prelude. He referenced the lawsuit, thereby suggesting that subsequent "episodes" (not "films") might comply with the Paramount-CBS guidelines. If that's what he meant, then a single episode Axanar cannot exceed 15 minutes, shorter than Prelude's 21 minutes, and there can be only two. Yet Peters described Prelude as mere "proof of concept." Confirming Paramount's 2015 fears, Peters said that Prelude was designed to demonstrate that a fan work could be of such high quality as to be technically indistinguishable from an official studio product.

The ultimate extent of Peters's fealty to the guidelines is unclear. I wonder whether he regards them indeed as mere "guidelines"—like the 1976 copyright fair use guidelines that, in my opinion, courts have too often misapplied as hard lines. In the October update, Peters talked about beta testing a new fundraising website. I wonder further whether he's exceeded the cap of the guidelines. He encouraged fan financial support at the Axanar website.

There was really only one corridor for every corridor shot.
Signs and wall fixtures could be changed, and it curved
(behind camera here) for an illusion of more space.

A New New Voyage

The Axanar debacle in 2016 left Cawley in an awkward spot. His one-of-a-kind set reconstruction had little remaining practical use for filming after Phase II folded. Yet adoring fans would bask in the extravagance of the work. He conceived of the Set Tour. Still, without official imprimatur, he would risk legal jeopardy by opening to the public. 

Cawley invited Paramount execs to Ticonderoga to have a look. No doubt, they were skeptical going in. But, at least as a Set Tour guide told the story, the execs were so impressed with Cawley's loving attention to detail that they agreed to license the Star Trek name. Thus, the Star Trek Original Series Set Tour is not, as I had first suspected, a trademark infringement flying under the radar in tiny Ticonderoga. Set Tour tour guides will not volunteer information about Phase II or other fan productions. Whether they're just playing it safe, or that was an agreement with Paramount, I do not know. But guides will answer questions about Phase II if asked.

The Star Trek Set Tour has a deceptively modest exterior.

To Cawley's credit, he always played ball with Star Trek owners. Remember, it was New Voyages that reached an express understanding with Paramount, before Axanar came along. Cawley came by the 1960s set plans honestly, by all accounts, while working for Theiss on the official franchise. And the Captain Kirk of eight New Voyages episodes even scored a cameo as a bridge officer in J.J. Abrams's Star Trek. The Set Tour has hosted original series cast members as guest tour guides. The original Captain Kirk, ninety-four-year-old William Shatner, is expected back in November 2025.

There is, by the way, a USS Ticonderoga in Star Trek, though accounts differ over whether the name is a nod to Cawley, American history, a real-life Ticonderoga, or all of the above. Five U.S. Navy ships have borne the name Ticonderoga, including an aircraft carrier that distinguished itself in World War II and the Vietnam War. In the 1970 epic war film Tora! Tora! Tora!, the Essex-class Ticonderoga served as a set for the slightly smaller Yorktown-class aircraft carrier Enterprise (CV-6, not the later, nuclear-powered Enterprise carrier built in 1961). A great many other Navy carriers lent their names to Star Trek starships, including the Lexington, Saratoga, and Yorktown in The Original Series.

I had a (phaser) blast of a good time at the Star Trek Original Set Tour earlier this month. On my way home from the American Society of Comparative Law annual conference in Montreal, walking through a wonderland of Gene Roddenberry optimism about humanity's future was a welcome antidote to Professor James Q. Whitman's gloomy prognosis for rule of law in the United States.

Set Tour visitors get a turn in the captain's chair amid Cawley's breathtaking recreation of the classic bridge of the starship Enterprise. Ironically in revolutionary-historical Ticonderoga, amid relics from an imaginary future, I've never felt more a part of American history.

(All photos RJ Peltz-Steele CC BY-NC-SA 4.0.)

The Set Tour has tons of artifacts, including ship models, props, and uniforms. Some of the props are recreations, but made so well that they were used in throwback, time-travel episodes, such as Deep Space Nine's 30th anniversary "Trials and Tribble-ations"—besides fan shows such as Phase II.

Vietnam marks 50 years since fall of Saigon, but American corporations overshadow communism today

At Hoàn Kiếm Lake, Hanoi

Vietnam recently celebrated the 50th anniversary of the fall of Saigon, and I visited Hanoi and Ho Chi Minh City to see the country today.

(All contemporary photos by RJ Peltz-Steele, CC BY-NC-SA 4.0, with no claim to underlying works.) 

Known in Vietnam as "the civil war" or "the American war," the Vietnam War was a hot chapter in the Cold War story, as the United States sought to counter expansion of communism in Indochina.

The war was barbaric on the ground and devastating to life and land. Estimates range from one to three million civilian and military lives lost in Vietnam, Cambodia, and Laos. More than 58,000 U.S. service members were killed. Land and wildlife were laid waste by lethal chemical defoliants, Agent Orange just one among them, inducing waves of cancer and birth defects. 

In the United States, veteran healthcare was overwhelmed by what would later be recognized as post-traumatic stress disorder. Meanwhile, the social turmoil of war protest shaped a generation of counterculture so powerful that it went mainstream, transforming law and society—even working as impetus in the development of modern First Amendment and transparency doctrine.

(For an anecdote from "the Hanoi Hilton" prison, see Analog propaganda proves persuasive to some at 'Hanoi Hilton,' where exhibits selectively whitewash war, The Savory Tort, July 30, 2025.)

Shipmate, the magazine of the U.S. Naval Academy Alumni Association, recently has published a series on the Vietnam War and its aftermath for veterans, "Legacy of Valor." The latest issue, July/August 2025, contains the fourth entry in the series and features USNA alumni stories.

The May/June 2025 Shipmate, which featured Marines' stories, also highlighted Vietnam War exhibits in the National Medal of Honor Museum (MOHM), which opened in Arlington, Texas, just in March. I was struck by similarities between MOHM—in the narrative and pictures, at least; I have not visited yet—and the War Remnants Museum in Ho Chi Minh City, where I visited in June. MOHM's largest artifact is a restored Bell UH-1 "Huey" helicopter donated by a veteran pilot; there's an American UH-1 Huey at the museum in Vietnam, too (with me below).

(Inset: Cover of Shipmate, March/April 2025, credited to Capt. Tom Murphy, USNA '66, USN (Ret.), depicting Murphy, at left, with his SEAL team in Vietnam in 1969. "Murphy was awarded a Silver Star for his actions that helped eliminate a heavily fortified Viet Cong camp on 2 March 1969," the magazine added.)

An American Huey UH-1H at the War Remnants Museum, Ho Chi Minh City

Ho Chi Minh's Mausoleum, Hanoi

Saliently, the superpower United States lost the war, beating a humiliating retreat from the southern capital, Saigon. Vietnamese forces trumpeted the persevering efficacy of ruthless guerilla warfare. The sweep of communism crushed western collaborators and the remaining resistance and sparked a humanitarian crisis as refugees escaped to the sea.

Yet to walk the streets of Vietnam's major cities today, one could be forgiven for confusion over which side in fact won the war.

Ho Chi Minh City

The fall of Saigon—today, Ho Chi Minh City, though "Saigon" is still widely used, at least to refer to the touristic center, and "SGN" is the IATA code of the international airport—is celebrated on April 30. The contiguity of international labor day on May 1 makes for a holiday break.

This year, innumerable banners, signs, and monuments lined streets throughout the country to celebrate the 50th anniversary. I wonder at the cost. The posters bore patriotic illustrations that would be at home in a historical compilation of 20th-century Cold War propaganda.

Yet the banners stand juxtaposed against a background of signs demonstrating the market dominance of western corporations, namely the likes of Coca-Cola, KFC, and ubiquitous 7-Elevens. 

A local guide who took me to the Cu Chi tunnels, from where Viet Cong guerilla fighters waged brutal resistance against American forces from underneath a great swath of the country, told me how his family lost their home and modest wealth and fled Saigon when all property was nationalized after the communists took over the south.

Communism never delivered on its promises, he said. When his father returned to the family home, he found it occupied by party apparatchiks, hardly "the people." Still today, he said, despite commercial development, Vietnamese people suffer poverty, grade-school-limited public education, and no universal healthcare. That's not much to show for a communist people's victory.

"We hate Americans," he joked, smiling. He explained that the regime, apropos of the classic propaganda-poster style of the 50th anniversary images, still teaches schoolchildren to hate America. But people know better and have "moved on," he said. "Now we drink Starbucks."

It occurred to me, insofar as corporatocracy is the measure of the day, it's maybe truly representative democracy that lost the war, both in Vietnam and in America. 

Lunar-new-year commemorative beer from Budweiser, for sale at shop, Mỹ Tho

Roadside signs, Ho Chi Minh City

Billboards, Ho Chi Minh City

Exhibit at War Remnants Museum, Ho Chi Minh City

Marker at Hoàn Kiếm Lake, Hanoi

Exhibit at Thăng Long Imperial Citadel, Hanoi

 

Marker in traffic circle, Hanoi

Analog propaganda proves persuasive to some at 'Hanoi Hilton,' where exhibits selectively whitewash war

Hỏa Lò Prison, Hanoi
RJ Peltz-Steele CC BY-NC-SA 4.0

Media illiteracy is not just an affliction of the aged.

In June, I visited Hỏa Lò Prison, also known as "the Hanoi Hilton," in Vietnam, where captured American soldiers, including the late U.S. Senator John McCain in 1967, were imprisoned during the Vietnam War.

Hỏa Lò was a prison well before the Vietnam War. The prison museum today mostly memorializes the brutal torture and execution of political prisoners at the hands of French colonial forces since the prison's 1896 construction.

Guillotine used by the French
in colonial Vietnam,
now at Hỏa Lò Prison
RJ Peltz-Steele CC BY-NC-SA 4.0

The museum exhibits largely whitewash the imprisonment of Americans during the Vietnam War. Exhibits skip over the interrogation and torture of American prisoners, which conditions they were forced to deny in statements in the 1960s, but later reported (U.S. Navy, CBS News). Under international pressure, the Viet Cong improved conditions in the prison late in 1969. The museum focuses on that time and a prisoner exchange in 1973, in which McCain went home after more than five years.

Following the timeline of the prison's history through the many exhibit rooms, I came upon a group of British tourists, circa 20 years old. They were looking at an image of American soldiers playing volleyball in the prison yard. The photograph is a rather well known piece of propaganda, but it's represented in the museum as just a day in the life of "the American pilots" held at the prison.

One young woman in the group turned to her cohort. "See?" she said. "After the French treated them so horribly, this is how well they treated the Americans."

I guess history is written by the victors. 

Sometimes I lament that persons of my parents' generation, reared on Walter Cronkite, too readily believe anything they hear from a purported "news" anchor on cable TV or the internet. I wonder whether a screen-reared generation is too ready to believe anything they see on a museum wall.

I'll have a longer photo-essay on Vietnam, and the 50th anniversary of the fall of Saigon, here at The Savory Tort on Friday, August 1.

Curators decry parody souvenirs, claim quasi-copyright

D 'n' me at the Accademia in June.
RJ Peltz-Steele CC-BY-NC-SA 4.0

David's genitals are all the rage in Florentine touristic fashion, and some observers see a kind of intellectual property (IP) problem.

Italian law has pioneered the protection of cultural heritage since the 15th century (Mannoni), centuries before Italian unification. Medici rulers limited the export of art in the 19th century (Calabi). In the 20th century, a 1909 law asserted a public interest in protecting items "at least 50 years old and 'of historical, archaeological, paleo-anthropological interest'" (N.Y. Times).

Italy continued to lead in protective legal measures in modern times. A public responsibility to safeguard the national patrimony was enshrined in the post-war constitution in 1948 and became the basis of a "complex public organization" (Settis). According to Giambrone Law, Italy was the first nation to have a police division specially assigned to protect cultural heritage. Italy embraced a 2022 European treaty on cultural protection with aggressive amendments to domestic criminal law (LoC). Woe be to the Kazakh tourist who carved his initials into a Pompeii wall this summer (e.g., Smithsonian).

Italian legal protection has extended beyond the physical. A 2004 code of cultural heritage limited visual reproductions of national patrimony without prior approval by the controlling institution and payment of a fee to the institution. 

That measure caused more than a little hand-wringing in copyright circles, as the law seemed to reclaim art from the public domain. The Italian Ministry of Culture doubled down with regulations in 2023, even as the EU moved to strengthen the single-market IP strategy.

Probably needless to say, images of famous works of Italian art are sold widely, in Italy and elsewhere, on everything from frameable prints to refrigerator magnets. Enforcement of the cultural heritage law is thin on the ground, but the government has scored some significant wins against high-profile violators.

A recent AP News story by Coleen Barry described the latest outbreak of this IP-vs.-free-speech conflict, this time over images of David. Cecilie Hollberg, director of the Galleria dell’Accademia, where David resides, has decried vendors who profit from "debase[ment]" of David's image.

Aprons for sale, 2010.
Willem via Flickr CC BY-SA 2.0

I saw David in late June. It was the second time I visited him; my first visit was in 1996. I don't well remember Florence from that long ago. But this time I surely was surprised by the quantity and variety of David gear available for sale on the streets around the Accademia, especially the sort of gear that Hollberg is talking about. David has become a character in every variety of indecent meme and crude joke about drinking and sex. David's penis is a favorite outtake.

These uses of David's image especially implicate moral rights in copyright law. Moral rights aim to protect the dignity of creators against distasteful uses and associations. However, as such, moral rights typically end with the life of the creator. Michelangelo died in 1564. The theory behind the cultural heritage code is indicated by the very word "patrimony": that there is a kind of inherited public ownership of classical works, thus entitling them to ongoing moral protection.

Copyright in U.S. law and in the common law tradition in the 20th century was slow to recognize moral rights, which have a storied history in continental law, especially in France and in the civil law tradition. But common law countries came around, at least most of the way. Broader recognition of moral rights was motivated principally by treaty obligations seeking to harmonize copyright. A secondary motivation might have been a proliferation of offensiveness in the multimedia age.

Hollberg has been the complainant behind multiple enforcement actions. Barry reported: "At Hollberg's behest, the state's attorney office in Florence has launched a series of court cases invoking Italy's landmark cultural heritage code .... The Accademia has won hundreds of thousands of euros in damages since 2017, Hollberg said." Not a bad side hustle.

David's shapely backside is not to be underestimated.
RJ Peltz-Steele CC-BY-NC-SA 4.0

EU regulators are looking into the legal conflict between free artistic expression and protection of cultural heritage, Barry wrote. My inclination to classical liberalism puts a thumb on the scale for me in favor of the commercial appropriators. I'm uncomfortable with inroads on the public domain. There already is excessive such impingement on creative freedom: inter alia, abusively lengthy copyright terms, chaos around orphan works, prophylactic notice and take-down, and publisher-defined fair use. The idea of removing permissible uses from the public domain is antithetical to liberal norms.

At the same time, I get the frustration of authorities. The average family visiting the dignified Accademia, eager to induce a much-needed appreciation for history and art in the youngest generation, first must navigate the cultural gutter.

Trademark feud centers on unsolved double murder

Lizzie Borden House, left; Miss Lizzie's Coffee, right.

A museum and a coffee shop are locked in trademark litigation over the name of an heiress accused of an infamous double murder. (All photos by RJ Peltz-Steele CC BY-NC-SA 4.0.)

Last year, Williamsburg, Va.-based US Ghost Adventures, owner-operator of the Lizzie Borden House and Museum in Fall River, Mass., sued Miss Lizzie's Coffee and its owner-operator, Joseph M. Pereira. The coffee shop opened in a house next door to the museum on Second Street in Fall River. US Ghost Adventures accused Miss Lizzie's of infringing on its trademark in "Lizzie Borden" and profiting from consumer confusion over the coffee shop's ownership.

In October, the federal district court, per Judge Leo T. Sorokin, denied the plaintiff a preliminary injunction. US Ghost Adventures appealed, and the matter is now pending in the First Circuit.

In 1892, Lizzie Borden was tried and acquitted of the axe murders of her father and stepmother. The brutality of the killings and the gender of the accused summed a blockbuster news event in the 1890s—not coincidentally, the pyrite age of yellow journalism—and the public followed the criminal trial breathlessly. No one ever was convicted of the crime, and Borden lived the remainder of her life under a cloud in Fall River social circles. The case has been a font of endless speculation in the popular culture, inspiring books, articles, films, TV shows, video games, songs, and nursery rhymes.

Lizzie Borden House and Museum

Opened to the public in 1996, the Lizzie Borden House and Museum, where the murders occurred and Lizzie lived at the time, features artifacts from the Bordens' life and the crime. The bed-and-breakfast part of the business capitalizes on the reputation of the property as haunted.

In August 2023, Pereira opened the coffee shop in a house adjacent to the Borden House. There is no confusion about what "Miss Lizzie's" refers to. The shop features images of Lizzie, boasts an overall theme of bloody death, and sells small souvenirs related to the Lizzie Borden story. US Ghost Adventures sued in September 2023.

"Hatchet blade" mark
registered to US Ghost Adventures
USPTO

While there is no confusion over the fact that both businesses aim to profit off the Lizzie Borden story, that overlap in itself does not constitute a trademark infringement. The defendants argued in federal district court, and the court agreed, that Lizzie Borden's name and image, and the story of the Borden murders are in the public domain. Trademark specifically protects only the brand name of the Lizzie Borden House and Museum as a hospitality service provider.

(UPDATE, Aug. 7: US Ghost Adventures has registered marks in "Lizzie Borden" and in its hatchet-blade graphic (pictured) for "hotel and restaurant services," which, I admit, comes closer to a coffee shop than mere hospitality. I would still draw the line. US Ghost Adventures also has registered "Lizzie Borden Museum" for "museum services" and the hatchet-blade image for key chains, jewelry, mugs, golf balls, hats, shirts, etc. Search "Lizzie Borden" at the USPTO for full details. HT@ Prof. Anoo Vyas.)

The trademark test for "consumer confusion" about who is the service provider presents, essentially, a frame-of-reference problem. US Ghost Adventures says that its trademark precludes another hospitality service provider from using the Lizzie Borden name, or anything confusingly similar thereto, and a coffee shop is a hospitality business. The defendants argued, and the court agreed, that a coffee shop is a sufficiently different enterprise from a bed and breakfast as not to induce consumer confusion.

Miss Lizzie's Coffee

It's not that a coffee shop could not infringe the trademark, but that this one has not, the trial court concluded. The plaintiff tried to tighten the connection between the two businesses by pointing to their proximate location and their common uses of hatchets in signs and promotional images. The court found neither proffer convincing. It makes sense to locate any Borden-themed business near the scene of the crime, and the hatchet images the businesses use are different. Lest there be any lingering doubt in a customer's mind, the coffee shop put up a sign avowing its non-association.

(There is some dispute as well about the difference between a hatchet and an axe, which was used in the murder, and which is depicted where. I don't have the bandwidth to, uh, chop through that thicket.)

Notwithstanding the plaintiff's appeal, I think the trial court got it right. Judge Sorokin convincingly suggested by way of example that trademark law does not preclude a business from using the historical name of Sam Adams, as long as the business isn't a brew works. In the same vein, in any close case, I prefer to see trademark law construed as not at cross-purposes with economic development, which Fall River can use. More touristic business floats all boats.

As the appeal unfolds in the First Circuit, an unfortunate and layered backstory is coming to light. For reasons unstated in the record—one might fairly speculate the burden of attorney fees—Pereira discharged his two lawyers, who withdrew from the case in April 2024. In July 2024, Pereira responded pro se to the appellant-plaintiff's brief. 

US Ghost Adventures was able to sue both Pereira and Miss Lizzie's because, according to the allegations, Periera opened the shop about a month before his business registration was formalized. The plaintiff therefore demanded that Pereira personally disgorge ill-gotten profits from that first month.

The problem now on appeal is that a corporation cannot be represented pro se, and Pereira is not an attorney. So his responsive brief, already shaky on legal formalities, cannot represent the position of Miss Lizzie's. The court accordingly ordered that Miss Lizzie's would not be permitted to argue on appeal. In an August 1 reply, the plaintiff then asked the court to decline oral argument entirely, as Pereira inevitably would argue Miss Lizzie's position in violation of the court's order. 

As I said, I think the plaintiff is wrong on the merits, so the First Circuit should affirm. And that would be the safe bet in ordinary circumstances.

But the plaintiff's reply fairly faults Pereira for thin legal arguments in the pro se brief. That puts the appellate court in an awkward position. Even if the plaintiff bears the burden of persuasion on appeal, the First Circuit is looking at a record short on effective counterargument. 

Considering the preliminary disposition of the proceeding in the trial court, the appellate court might err on the side of reversing and remanding, to develop a fuller trial record. The defendants' pro se bind will persist, though, and would threaten an outcome dictated by access to counsel rather than the case on the merits.

There's a deeper layer yet. It happens that Pereira has a troubled history with the law. According to The Standard-Times, in 1996, he "pleaded guilty to stealing more than $119,000 from 15 people after posing as a lawyer and mortgage broker." Appearing as an attorney in a 1993 housing matter, Pereira "was so good, witnesses say, that ... he stood up to a judge, a clerk and another attorney without even raising an eyebrow," The Standard-Times reported in 1995. A veteran attorney said that "he never suspected a thing," and that Pereira "was very polite and seemed pretty knowledgeable about the lead-paint law."

Pereira's record did not improve subsequently. In 2010, he was sentenced to three to five years' imprisonment after "he pleaded guilty to 13 counts of larceny, one count of practicing law without a license and one count of committing that offense after being convicted of the crime in 1996," Wicked Local reported in 2012. As The Herald News put it upon an arrest in 2019: "Since 1982, Pereira has been arraigned approximately three-dozen times on larceny-related charges. His most recent arrest added another 17 larceny charges to his record." He did beat some charges.

To Pereira's credit, I did not think his response in the First Circuit was as devoid of reasoning as US Ghost Adventures alleged. Albeit in improper form, the appellee's brief more or less rehashed the core arguments in the case. If in proper form, that's what the appellant's brief did, too.

Certainly Pereira's criminal history should have no bearing on the trademark case. The case also, ideally, should not be decided based on either party's access to counsel, though such immateriality of resources is not the way of the American legal system, especially on the civil side.

Whatever comes to pass procedurally, I stand by my assessment of the merits. On Friday morning, I picked up a cup of coffee at Miss Lizzie's.

The appellate case is US Ghost Adventures, LLC v. Miss Lizzie's Coffee LLC, No. 23-2000 (1st Cir. filed Nov. 27, 2023). The case in the trial court is US Ghost Adventures, LLC v. Miss Lizzie's Coffee LLC, No. 1:23-cv-12116-LTS (D. Mass. Oct. 27, 2023) (CourtListener).