The concept of an expressive work goes back to the copyright requirement for an original work of authorship. As was indicated at the time, this is a bar to protection, but a rather manageable threshold. For example, this article would in all likelihood be an original work of authorship, for a variety of reasons. Also as noted this requirement is two-fold. One is the “original work” and the other is an “author.” An expressive work goes to the “original work” aspect.
In a way, an expressive work is extreme legal short hand for stripping away those aspects of works which would not be protected by copyright. There are several categories of things created by an author which do not rise to the level of an “original work” and tend to be non-expressive.
First, as an example of a work which would have had a copyrighted, an expressive work: Romeo and Juliet by William Shakespeare. The play is a compilation of words, phrases, characters, costume and set design. Taken as a whole, it tells a complete story about young love, impetuousness, and the cruelties of the world. Romeo and Juliet has been dissected and analyzed for years as a work of a master author. It is clear the play would have been given copyright protection if created modernly.
In contrast, let us look at a couple of examples of non-expressive works, those things not granted protection under copyright. A grocery list is a work of authorship, fixed in a tangible medium. There is no copyright protection because it is a work empty of expression, it is not an original work.
Why? There are a couple of reasons. First, the grocery list is comprised of facts. The fact is the person who made the grocery list needs milk. The fact is there are a list of ingredients necessary for dinner and the grocery list needs these. The grocery list contains the facts of daily life and do not truly rise to the level of a copyrighted work.
Another reason is the grocery list is just words and phrases. Milk. Cheese. Chicken breasts. These are common items on a grocery list and tell the reader exactly what is necessary. However, there is no originality with this, they are common words and phrases sitting on a piece of paper isolated. Composing words and phrases into a sentence woven into a narrative transforms them into an original work.
This is what is meant by expressive, there is a story, a narrative conveyed. As a general matter, the idea of an expressive work is tied to written works, movies, and television. When discussing the live telecast there was the idea a sporting event itself was not an expressive work. The idea behind such a statement is the game is comprised of facts. The quarterback threw the ball to the defender, who dropped it. There was a slam dunk. The star striker scored a goal. These are facts when they occurred in the game. As such, a discussion of facts would not violate the copyright, because the game itself is unlikely to be protected by copyright.
Expressive works are important because it goes to the purpose of copyright. Copyright is to encourage artists and authors to create something new, both by protecting their works and preventing unauthorized copies. Thus, limiting copyright to a work which says something more than facts is important and a critical aspect of the legal framework.