The devil is in the detail

I have commented on copyright infringement in regards to video games before in some of my previous posts, but I have been thinking lately about what this means for other creative mediums. In particular, can fashion be protected under copyright law? In this day and age, with 3D printers, online shopping and very skilled seamsters cheap knock-ff of very expensive and popular items can be found across the globe in attempt for these people to make a quick bit of easy cash. In 2015 EU’s Office for Harmonization in the Internal Market conducted a study that found that 9.7% of all items on the market were counterfeit, and as a result accounted for around €26.3 billion of revenue lost every year. While it may not be a mainstream issue, it is clearly a huge problem for those who wish to work within such an industry.

Why else does this matter?

In the 2006 movie The Devil wears Prada, Meryl Streep’s character has a little speech about why fashion matters and the end punch line is that it all matters, because you live your life in it. We spend every day wearing clothes, that while we do not think are overly important, they still say who we are: Our personal style helps to create first impressions to those we meet and how we carry ourselves through society. Trends in fashion also reflect the issues of society at any given time: punk rockers dressed the way they did to silently protest against the conformity seen throughout the rest of society, just as vegans can now wear clothing that has little to no impact on the environment and causes no harm to animals. As much as we don’t want to admit that we care about ‘fashion’, we all care about style in that we all care about how we dress ourselves, even if it is only for the feeling of power that is gives us to wear what we like, how we like and when we like.

Blair Waldorf (played by Leighton Meister) in Gossip Girl

How does the law approach it?

As with everything to do with law, interpretation is everything. Lucky for us, fashion is all about interpretation and based on the statute alone, fashion is not actually mentioned under the Copyright, Patents and Design Rights Act 1988. Under this law, a creative medium needs to fall within one of the categories within the legislation and while there is some leeway as to how the courts label fashion, it is most likely to fall within the definition of ‘artistic craftsmanship’. Now this is not really helpful, but thankfully there is a LOT of case law to refer to in order to try and make a decision.

In Hensher v Restawhile, the House of Lords stated hat a prototype for a distinctive three-piece lounge suite, which was intended for mass production, was not artistic although the Lords differed in their reasons as to why. Then there was a case about a baby’s cape which was held not to be artistic because there was no intention to create an artistic work, just as a patchwork bedspread was not deemed to be artistic because although the designs were “pleasing to the eye” they were not sufficiently creative. This has been discussed in fashion relevant case law where sweaters and cardigans were held not to be artistic. Although the items in question had been displayed in the V&A Museum, they were exhibited as examples of developments in fashion rather than as works of art. One case in recent years that has also addressed this issue was related to the storm trooper helmets from the Star Wars movies, where the High Court held that the helmets were not artistic because their purpose was not aesthetic. The Supreme Court later held that the helmets were not sculptures, and could not be protected in that way either, which brings to attention the need for aspects of fashion to be protected from copyright infringement.

The majority of cases seem to show that there is a lot of debate over whether fashion can count as ‘artistic’: as a rule of thumb it seems the work must be aesthetically appealing to the general population or must have been created as an artistic work. To me, art and an ‘artistic’ creation should make you feel something. Now this may be confusing to those who are interested in fashion: How anyone can look at Charlize Theron in that gold Dior dress, or stare at a pair of Louboutin high heel courts and not see the art in them might as well be dead inside.

Image result for j'adore gold dress                                   Charlize Theron in the Dior J’adore perfume advert

On the other hand, “craftsmanship” is potentially easier to meet. Knitting and tapestry-making have been treated as crafts, usully on the basis that they are one off creations that were intended for artistic work. In Hensher v Restawhile, Lord Reid and Viscount Dilhorne said that the requirement for craftsmanship implies that a work must be hand-made whereas Lord Simon held that “craftsmanship” cannot be limited to handicraft and that the word “artistic” in itself is incompatible with machine production. This therefore suggests that if a designer is to make a one-ff, limited edition piece of haute couture clothing that is not designed to be mass-produced, then this could potentially be protected under ‘craftsmanship’ and thus protected by copyright. But what does this mean for mass-produced clothing?

In short, the UK is still pretty slow on the protection available for fashion under copyright law. There have been many debates and papers on what can be done about this, with many of them pointing towards the European model of an open list: In France, Germany and even in the US, any work which is original can be protected by copyright. In France, the threshold for originality is a work which “bears the stamp of the author’s personality” and in Germany copyright protects “personal intellectual creations”. This allows for a much smaller threshold to be met by designers and as such less chance of them being copied without the author’s consent. It also means that there is no need for long and complex case law or debate around the issue as it is simply stated within legislation and only needs to be discussed when it needs to clarified on a large scale. This appears to be not only the simplest option for designers, but also the easiest way for the UK intellectual property offices to keep an eye on potential infringements on the open market.

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Here today, gone tomorrow

One potentially reason why there is no real need for there to be protection for fashion is because fashion is always changing: What is fashionable this week will most likely be forgotten about in a months time. Fashion is a constantly evolving aspect of society and while trends may come and go, the fashion industry is constantly in a state of innovation and trying to create pieces that have never before been seen. Trends are only meant to last a few years at the most, as anytime after that they either become iconic for the time period, or they become cringe-worthy (in some cases they can be both!).

What do you guys think? What would you want to see within the fashion industry?

T xx

 

The real OG

‘You are unique…just like everybody else.’

This simple statement is a pretty common oxymoron. While it is still true that there are no two people who are 100% identically the same, the fact that we are all different is one of the main things humanity has in common. So is there such a thing anymore as originality? No matter what we wear, how we act or what we create, there is a high chance that there is someone else out there in the world who is doing the exact same thing. But that doesn’t mean it’s all doom and gloom…

Is originality even a thing?

Everyone is shaped by their experiences: Everything that we come into contact with over our lives shapes us into the person and the personality that we become. Due to this, inspiration is everywhere and we may even be influenced by things that we aren’t even aware we have noticed. A newspaper article from 10 years ago could be the reason you want to draw pictures, in the same way that a loud car stereo blasting 80s pop driving past you may make you want to start writing. It could be near impossible to pinpoint the exact reasons why we are all the way we are, but it doesn’t stop the fact that we have all been influenced by something else, which was no doubt influenced by something before it and so on and so forth.

Image result for originality gifsFightclub breaking all the walls

So it possible to still be original? If everything we ever create is nothing more than a step up from something we have seen, can we even say that it is our own work? From a legal standpoint, intellectual property has guides in place to ensure that no work has been intentionally copied: As long as you can prove that you created a piece of work through your own thought processes and own design plans, chances are you’re going to be fine (obviously it’s a bit more succinct than this, but I don’t think I have the time to explain it all!). But on a more philosophical level, is it possible for any of us to claim that our brand new identity or our way of dress is an original one?

Subculture symmetry

Everyone knows the old troupe: In high school you have those who follow the norms of society, and then you have the odd little groups of people who do not.

Image result for mean girls group gifs Mean Girls showcased this perfectly…

From the sociological aspect, all of these little groups within society are known as ‘subcultures’ where everyone within that subculture shares the same norms and values. However, in today’s society these  subcultures can have very blurred cut off points within them. I, for example, would not necessarily fit into one subculture alone: I may be blonde, wear a lot of pink and love pop music, but I also love video games, superheros and reading science fiction novels…I also don’t think I’m a mean enough person to have been one of the Plastics, but I digress. Subcultures by nature always include some form of similarity: members tend to dress the same, talk the same and even believe the same things. Key examples of this are the 1980s Punk, the 2000s Goth and even now the emergence of the Seapunk. They all look the same as each other, but at least they’re not mainstream. In some ways, subcultures go against originality as the entire practice seems to try and place members of society into boxes. Is this why originality is so hard to come across? The use of labels?

So what does this mean?

Today’s society is a massively innovative one with common social norms being challenged everyday from every aspect of itself. Young people are leading the gender revolution, wanting to do away with normal sexuality labels and gender stereotypes and instead move to an inclusive and free state of simply just existing: love who you love, be whatever gender you decide, believe whatever it is you wish to believe…but know that you will be accepted purely on who you are rather than how you have been socialised and labelled. For some people, especially those in a creative setting, this can be a whole new challenge, as trying to be memorable in a world where everything merges together is not an easy task. but perhaps this is where we fail.

Moving forward…

Just because something has done before does not mean that it is not original or innovative. it is common knowledge that anyone can copy something: If i can’t draw, I’ll just trace a picture, if I can’t write songs, I’ll just mash a load together. Originality comes from the little bits of you that you add to it to make it better: Five Night’s at Freddy’s fans are another key example of this as while the games they make are not, by nature, original content, the stories they create, the character interactions they add and the overall game play of said games are enough to make the new games original enough to improve and add to the existing base. Everything may not be original, but if something is added to the original to progress the entire idea forward, then that alone should be enough to be original.

“Even in literature and art, no man who bothers about originality will ever be original: whereas if you simply try to tell the truth (without caring twopence how often it has been told before) you will, nine times out of ten, become original without ever having noticed it.”

– C.S Lewis

T xx

Cosplay or copycat?

We have seen from some of the previous blogs that copyright law steps in when there has been blatant copying of one game in creating another game, but what about taking the characters themselves out of the game and into the real world?

Cosplay is the practice of dressing up as a character from a film, book, or video game, and is usually focused on those characters from the Japanese genres of manga or anime. it is a common practice at many comicons that the vast majority of those attending take the opportunity to dress up as their favorite characters, with many conventions now holding competitions for the best look-a-likes.

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A couple cosplaying as Wonder Woman and Batman. Other examples can be seen here

But if you were to dress up as your favorite character, this is not necessarily a cheap feat. If you are really going to do the character justice you need a lot of supplies: clothing, make-up, wigs, weapons, accessories, footwear, extra padding, armour details…the list can go on and on especially if you are trying to recreate a character from comics or video games. Now in the wonderful digital age in which we live, the internet has made all of the above easily accessible. The main question however will be whether or not you can afford to buy it all: If we decided to stick it out with our Dark Knight above, this could set a person back around £250. You’ll look awesome, but probably won’t be able to afford any other clothing for the foreseeable future.

So why not make your own?

I’ll admit it right now: I love a bit of dressing up. Any chance to wear fancy dress and quite frankly I’m sold. However, I am also really, really, really tight-fisted when it comes to my money and so could never justify to myself spending a lot of money on an outfit I’ll most likely only wear once (twice if i’m really lucky!). Creating your own costume is easier and usually cheaper than buying one ready made, especially if you are dressing up for a bit of fun at a convention or as a party troupe. However some of these cosplay competitions are a big deal for those who compete: While cash prizes are rare, the opportunity to win trophies, photography sessions and even meet-and-greet passes with the convention guests, are all big prizes to those fans who compete. In order to win once in a lifetime opportunities such as those awarded at these competitions, your costume must be on point: My Wonder Woman t-shirt, blue skirt and silver bangles will not be enough.

But does making your own count as copyright infringement? In short, no. If you are creating a costume purely for your own enjoyment then it would most likely not be covered by copyright infringement, as you are not causing any financial risk to the original owners. I could take this time to try and explain the implications of design rights within the fashion industry but that would be an entirely new blog post!

What if you made one for a friend?

Now this is where things could potentially be a problem. If you enjoy making the costumes, you may have a friend who asks you to create a costume for them of a particular character as the entire feat is too complicated for them. Based on the financial risk to the original owners, whether this could be copyright infringement rests heavily on whether or not they pay you for the work, and, almost more weighty, is whether this becomes a business for you. If your friend offers to pay you for the materials and time to make the costume, then it could be seen that you are taking money away from the original owner of the character and the costume. While this is extreme, it could become a more pressing issue if you were to do this for lots of friends…so much so that you would say that it is your work and it clearly had a commercial gain to it all.

Final verdict?

When it is clear that your hobby has now become a commercial enterprise, it is probably best to seek a license to use the image from the original owner (such as DC, Marvel or Square Enix for example) in order to protect yourself from a very nasty infringement claim being brought against you. While this may seem like a bit of an effort, it is best to cover your back rather than risk bankrupting yourself over something as minor as a winged cape.

Other than that, craft to your heart’s content my fellow geeks! I shall see you at a convention near you.

T xx

 

Freddy Fazbear and his F**Kboys

One indie game of high popularity in recent years has been Five Nights at Freddy’s. This is a rather simple point and click horror game, where the player controls a night watchman with the aim of surviving numerous nights of increasing difficulty by not being killed by the animatronic machines that come ‘alive’ at night. With its use of jump scares and simple controls, this game has a very active and loyal fan following and as such there have been some fan made versions of the game.

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^^ Freddy Fazbear ^^

One game in particular, Five Nights at F**kboys, may not be suited to the original game’s current audience. This version of Freddy’s involves Freddy trying to have a wild night of debauchery and partying, with many of the characters wearing inappropriate clothing and one character performing inappropriate acts whenever you see him on the surveillance cameras. It is also recommended to do a shot of alcohol before each level, so that as each level gets harder, the player also gets more intoxicated, and this supposedly makes for a far more enjoyable and entertaining experience. The crude and adult themes throughout this version are obviously not suitable for the relatively younger audiences that were drawn to the original Freddy’s game and yet they can still easily access it under the impression that it is made by the same developers.

So what can developers do?

By issuing proceedings against this type of copyright infringement, it allows developers to have control over how their work is used, especially when it comes to the audiences they are trying to protect. In this sense, control is therefore maintained by the developers and their game is protected from negative infringement. In more tactful situations however, negative imaging is exactly what the copier wished to do in the hope of tainting the reputation of the original game to such an extent as to render it unappealing to consumers.

The problems?

It stands to reason that developers can not always issue proceedings against people who infringe their work: the cost alone can be substantial, and for companies and developers just starting out in the industry this cost can be crippling. However it could be argued that the main reason why the developers wouldn’t want to issue proceedings is because of the impact it would have on their overall image. If a developer does nothing but condemn those who copy their work, they are in some way dampening the appeal of their game: FNAF has bee so successful because of the massive fan base that has built around it, and this is mostly due to the ability of fans to create their own interpretations of the games which help to add story and experience to the FNAF world rather than just as one lonely game.

Most games involve some form of player communication in the form of either online multiplayer modes of gaming, or simply through the online forums that fans create in order to discuss the game, their tactics and share their own experiences of the game. These online forums create pathways through which people can gossip about the game developers and in a world as digitised as ours, news spreads very quickly: The second word gets out that there is a new upgrade, a new map or a new way of beating the game these forums are flooded with information and distributed to hundreds upon thousands of people. This clearly raises the issue of what litigation can do to a company’s public image. The main concern of any solicitor when advising a client on this issue should be ‘What would the fans make of this situation?’, since while they do not make the final decision as a legal judge would, commercially speaking the voice of the fans is the only voice that should really matter to a video game designer: If the entire fan following (or to some extent even a small majority of them) feel that the designer is ‘attacking fans’ with legal proceedings, then the entire community basis on which the game rests becomes unstable and, for the most part, will begin to falter before completely dying away. In some respects, video game fame is fleeting, since technology and software is changing so dramatically that it can almost be impossible to keep up with. As a result, it is probably better for a game developer’s brand to be left on a high rather than risking becoming labelled as ‘the company that sues its fans’.

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^^ One of the faster characters, Foxy ^^

What can be done?

It is clear from simply reading the comments on gaming forums that gaming fans are a loyal and fierce breed of fans. It could also be argued that people on the internet appear to have feel more confident online and as such seem more likely to speak their mind, and most certainly will not hold back on comments or remarks if they feel justified. This in a way acts as a secondary level of enforcement without the need for expensive court procedures or solicitor fees, as the fans do the hard work for the developer when it comes to protecting a game’s image and reputation. If the fans come across work that is infringed, some may flag this with the streaming service itself for breaching without consent of the author, while others may even bully the infringer until the material is taken down. From looking at fan made games as well, it would appear that most fans are happy to state that their game is a copy (even if only to a small extent) of a game already in existence. It is perhaps this admittance of copying that makes it acceptable within the eyes of the entire fan base as it shows others that they are not infringing to make a profit or for any other malicious reason, but rather to add to the experience that the original already created in order to make it a better experience for the fan base as a whole. In this sense, copyright infringement when it comes to games could be seen as an altruistic act that is done more out of love and admiration for a developer’s work than out of mere thievery and deceit. This in turn therefore means that when a person does infringe the work but tries to claim that this is all their own original creation and that people should pay them for it, the fan base may take that as a personal assault on their own gaming subculture, and as stated at the beginning of this paragraph, decide to oust the immoral infringer themselves in order to protect their own interests in the game as a fan.

The conclusion?

FNAF is an example of a game that is more or less defined by its fan base. The idea that fans can add to the FNAF experience means that the literal copyright infringement can be overlooked if the work in question still maintains its integrity. In this sense, perhaps copyright infringement is simply a fall back position: It is not a concrete law that must always be adhered to, as it is essentially up to the original author whether or not they see the infringement as damaging to their own brand. In the case of Freddy, and his many many renderings, impersonation really is the sincerest form of flattery.

 T xx

Gotta Condemn them all!

Just like every other twenty-something, I spent the majority of my spare time last year wondering around my neighborhood trying to catch Pokemon on my phone thanks to the creation of Pokemon Go!. I grew up playing these games and this mobile game allowed me a chance to achieve a dream that I have had since I was 8: To become a Pokemon master! However as I grew up, I noticed that some people had problems with Pokemon, claiming that it promoted and glorified animal cruelty to children.

Pokemon vs PETA

In 2012 People for the Ethical Treatment of Animals (PETA) released a satirical version of Pokémon titled ‘Pokémon Black and Blue’, an online game where you rescue Pokemon from real life animal abuse situations. PETA have been known for their shock tactics when it comes to animal rights, from campaigning against cosmetic testing on animals to using fur in the fashion industry. PETA have stated for some time that Pokemon, while they accept it is fictitious, creates a rosy pictures of things that are actually abusive. They have stated that confining Pokemon to their Pokeballs mirrors the housing of animals in factory farms, and the use of Pokemon to fight each other mirrors the animals used in fighting arenas for money. While this may seem a stretch to some, there are some similarities and it can be easy to see why PETA feel the way they do about Pokemon.

It is clear that the creation of the satirical Pokemon games is an infringement on Nintendo’s copyright. Yet why are PETA doing it? Copyright infringement is a crime because of the risk that the infringed work could have negative effects on the original brand itself: A cheap rip-off has none of the insurance or the quality of the original and for members of the pubic who can not tell the difference this can be highly problematic. Yet with PETA, this is exactly what they wish to do to Nintendo. It could be argued that PETA want to associate the Ninetendo company with games that glorify and promote animal cruelty in hopes that this will deter people away from the brand entirely. But does a company as large and successful as Nintendo really care?

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Chikorita vs Charizard….The new David and Goliath?

However, the release of the newest Pokemon game installment, Pokemon Sun and Moon, actually addresses PETA’s concerns in a subtle but effective manner. During the newest game, you are accompanied for some of the main story line by a young girl named Lillie, who states on numerous occasions that she does not wish to fight Pokemon as she doesn’t want to see them getting hurt. There is also evidence of different professions within the Pokemon world, with some scientists stating that they wish to only encounter Pokemon in order to record their discovery, and also other NPC (non playable characters) who state that they want to become a Pokemon Carer rather than a Pokemon Trainer. it would appear that Nintendo are taking heed of PETA’s campaigns and are trying to create a game that allows the player a choice of how they interact with the Pokemon rather than simply being about Trainer progression. This could be seen as an effective new step against copyright infringement, as it shows the original brand acknowledging the infringed work and, to some extent, even taking on board some of their ideas and concerns in order to produce a product that will now appeal to a wider audience than the original one did. In this sense, it is practically free labor, as the developers have had to do very little research to find out what issues the general public have with their game. It may not be much, but it is a step in the right direction for Nintendo to try and get PETA to leave them alone.

Should the law step in?

When it comes to Pokemon it would appear that a line needs to be carefully drawn: While there is no evidence to suggest that Pokemon players actually commit acts of animal cruelty, the generic theme of the game does very clearly promote using ‘animals’ as ‘weapons’. On the other hand, it could be seen as condescending to assume that players are simply going to repeat actions in a game simply because the game allows for it in the story. This issue can be linked closely to the issue discussed in the previous blog post, ‘Video game censorship’. It would appear therefore that the law should only step in with the companies involved raise the issue in a legal setting: mediation could be the future for copyright infringement of video games, as a middle ground can be agreed between the two parties.

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Pikachu and Eevee…they know how to reach an understanding

T xx

Things I wish I knew before I studied law

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Accurate representation of me throughout my 4 years of studying law

When I went to law school, there were a lot of surprises: the workload, the content and above all else, the career prospects.

Don’t get me wrong, I LOVED studying law and even to this day I am still keen to read my course books over and over again in order to keep my memory fresh. But there are a few things I wish someone had told me before I started my studies and I would like to share those with you now.

1. Dry, Dry and Dry

Something to be aware of about law school is the unbelievably dry content of the topics. The undergraduate degree is a lot more focused on the theory behind laws rather than the actual law itself: Nothing is straight-forward. While you may have a few subjects that have really interesting cases (criminal, here’s looking at you!) the majority of other subjects such as contract, tort, land and equity are all very much focused on the interpretation of the law and the consequences of such interpretations. In a nutshell, while the law may say one thing, a judge may say the complete opposite based on interpretation and thus that is a new spanner to throw into the already heaving works.

2. Be prepared for some weirdness

This relates to the above note quite a lot and I would like to warn you before hand to be ready to hear some really weird stuff while you study. Especially when it comes to criminal law. If you are someone who is more conservative or uncomfortable discussing the nasty habits of society then this may not be a nice few years of study for you: In my second year of undergraduate degree, my Monday mornings consisted of learning about cases that dealt with sadomasochistic sex and acts that not even 50 Shades would condone (I will not go into details but most cases involved candles, nails and man-bits). Then again, some of the situations that people managed to get themselves into regarding contract law and land disputes will also make you stare in both shock and disbelief that so many people can have so little common sense. But do not fret because this brings me onto the next point…

3. You will become desensitised to all of the weirdness

Eventually, you really will have heard everything. It is very rare, especially when studying, to read about a situation that has absolutely no precedent and after a while all of these situations will begin to be funny rather than shocking. Furthermore, it always stands to remember that an entire field of law was founded because one man found a snail in his bottle of ginger beer. The more cases you read, the more you stop being shocked by what you have read and simply add it to the long list of cases that already exist. So bear with it all…after the fourth or fifth case of the same scenario, it no longer seems that weird.

4. Law is not a single destination

When you begin law school, it is drilled into you from that point onwards that you have two options: Solicitor or barrister. It can sometimes be difficult to see any other career path as all work experience and lectures are focused on getting you into one of those two fields. If you are lucky, you already know which path you want to take and this is not news to you. However if you are like me and want to study law simply because you think it will be interesting, then there are a few more things to be aware of. Law is a wonderful subject and it will redoubtably be useful no matter what profession you later decide to go into: become an estate agent based on land law, a journalist based on media law, a news presenter based on public law and so on and so forth…the list really is endless! I have many classmates who have gone on to work as television producers, research assistants, bankruptcy officers and even company secretaries. Other careers such as patent attorneys or IP consultants have their own training programmes available so that you can do more or less the same role as a solicitor but be more specialised in an area of law that you find most appealing.

Also, the life of a solicitor and a barrister is not for everyone: the responsibility and the stress of such a job can be too much for some people to cope with. Therefore jobs as a paralegal, legal secretary, legal assistant or even as a personal assistant to a solicitor allow people to work closely with the law without having to shoulder so much pressure while doing so.

5. Breathe.

This is probably the most important. Throughout my time at university, my classmates and I spent the majority of our time racing to keep up with the work load (even when we were on top of our workload) and no surprise we would burn out every few months. So my advice, my main piece of advice, is to breathe. Research has shown that the optimum amount of time you can spend studying is roughly 2 hours…any more than that and your brain is no longer paying attention and you shall remember nothing new. Set yourself a target (I used an alarm clock) to work for 2 hours on any given topic and then take a break for 15-30 minutes: Enough time to make a cup of tea and actually drink it all, or to watch one YouTube video, or even to walk around the block quickly. When you come back to studying you will be more refreshed and more ready to start again and thus avoid any chances for burning out. Also, set yourself at least one nice social event or pamper evening a week: See a friend for coffee, have a movie night with your partner, go out for dinner with your parents. Whatever it is, do something that is completely unrelated to your studies so that you can completely decompress after a week of solid studying. It will be worth it and you will be able to keep up momentum for much longer.

NOTE: This last comment isn’t exclusive to law, as it should be remembered that no matter what course you are studying or what career you are aiming to go into, your own mental health is worth so much more than a qualification!

NOW GO GET ‘EM!

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T xx