File: Hutchison Created on: 4/2/2012 10:04:00 AM Last Printed: 4/2/2012 10:04:00 AM 101 INSIGHTS FROM PSYCHOLOGY FOR COPYRIGHT’S ORIGINALITY DOCTRINE CAMERON HUTCHISON* INTRODUCTION The discipline of psychology has much to offer the law of copyright.1 For example, determining whether a work is original in a legal sense implicates, and may be enriched by, the psychology of creativity. This article is a foray into the linkage between psychological understandings of creativity and the legal standard of originality. While the methodologies and approaches to the psycho- logical sub-discipline of creativity are many, certain frameworks are chosen that seem most relevant and probative to the task: psychoanalysis (specifically, Jung- ian psychoanalysis),2 experimental psychology (specifically, the cognitive sci- ence of creativity or “cognitive creativity”),3 and social psychology (specifical- ly, systems theory).4 In the legal sense, originality means both that a work originated from the author (“authorial originality”) and that it satisfies a threshold of creativity, or in Canadian legal parlance, “skill and judgment” (“creative originality”).5 Although legal assessment of the former is necessarily process-oriented, for * Associate Professor, University of Alberta Faculty of Law,
[email protected]. The author would like to thank the staff at the Federal Court of Canada (Edmonton) for their assistance in retrieving and accessing the trial record of Preston v. 20th Century Fox. 1 There has been very little scholarly exploration of the relationship between copyright and psychology. See generally Jeanne C. Fromer, A Psychology of Intellectual Property, 104 NW. U. L. REV.