TROUBLES AT THE JOFFREY : Arpino Puzzle . . . Whom Did He Work For? : Copyright law: Ownership of his ballet works hinges on whether he was a free-lancer or was employed by the Joffrey.

Whether Gerald Arpino can legally forbid the Joffrey Ballet from performing his works depends on whether he was a Joffrey employee whose job included creating the dances, according to experts in copyright law.

If Arpino was an employee, he cannot stop the ballets from being performed. While he may have choreographed them, they are not legally his. The company listed Arpino in tax returns as its salaried artistic director and a member of its board.

“A copyright is distinct from the work itself in that it is the exclusive right to copy or reproduce the work,” said Scott W. Pink, a San Francisco lawyer who specializes in copyright litigation.

The copyright to his ballets would belong to the Joffrey, which could perform them whenever it wished, unless Arpino has a written agreement to the contrary.

Arpino apparently has no written agreement with the company.

On the other hand, if Arpino was a free-lancer or independent contractor, the copyrights on the ballets he choreographed would belong to him--unless he signed an agreement giving them to the Joffrey.

One expert said that Arpino could have been employed as the Joffrey’s artistic director, but, at the same time, maintained a free-lancer’s relationship with the Joffrey in terms of the ballets he choreographed. He compared Arpino to a conductor who was employed by a symphony to direct the orchestra, but who also composed his own symphonies on the side.

The distinction between a free-lancer and an employee has kept a generation of copyright lawyers busy.

Before Congress revised the copyright law in 1976, courts generally presumed that the copyright belonged to the purchaser of art.

But Congress said that while artists who were employees were presumed to have sold the copyrights of their work to their employers, free-lance artists were presumed to have retained their copyrights.

Federal appellate courts in different parts of the country then came up with different methods of telling free-lancers and employees apart.

The U.S. Ninth Circuit Court of Appeals, which covers California, for instance, came up with a wide definition of free-lancing. It said that unless an artist is a “regular, salaried employee,” he is presumed to be a free-lancer.

The U.S. Second Circuit, which covers New York, came up with a narrow definition of free-lancing. It ruled that if a purchaser directed the manner in which a free-lancer performed his work, the free-lancer was really an employee.

Last year, the U.S. Supreme Court stepped in to set a nationwide standard and rejected both the California and New York approaches.

A unanimous court set forth about a dozen factors for judges to look at, but did not give any guidance as to their relative importance, said Lionel S. Sobel, a copyright specialist at Loyola Law School and the editor of the Entertainment Law Reporter.

Factors that would indicate Arpino was an employee would include the Joffrey’s withholding taxes from his pay, making Social Security contributions on his behalf, and paying his health insurance premiums, Sobel said.

In the Joffrey’s 1987 tax return, Arpino is identified as artistic director and a board member who received $82,200 in compensation with contributions made to employee benefit plans, including medical coverage and a pension plan.

Factors that would indicate Arpino was an independent contractor would be his being paid in a lump sum, having other clients, or having his own office apart from the ballet company’s offices.

Pink, the San Francisco-based copyright specialist, suggested another possibility.

If others at the Joffrey Ballet contributed significantly to Arpino’s choreography, courts could rule that Arpino and the company share in the copyrights.

Sobel, the law professor, suggested that Arpino might also have difficulty winning his case since he was a member of the Joffrey’s board of directors. The company could argue that Arpino, as a board member, had an obligation to do what was best for the corporation; not what was best for himself. Therefore, it could be argued, he could not reserve for himself copyrights of the Joffrey’s dances.

Sobel also suggested that, even if Arpino owns the copyrights, “he must have impliedly licensed the Joffrey to perform his dances--because he didn’t object to them performing them.

“He can’t show up in the middle of a performance and say ‘I revoke my license. Stop dancing.’ Can he show up in the middle of the season and say, ‘Stop!’?” said Sobel, suggesting the company may be entitled to some advance notice. “I guess I’d be sympathetic to that kind of argument if I were were a judge.”