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Victorious Youth – Italy v. J. Paul Getty Museum

The “Victorious Youth” – a life-size bronze statue created sometime between the 4th and 2nd century BC – is at the centre of an ongoing dispute between Italy and the J. Paul Getty Museum. This statue was discovered in 1964, caught up in the nets of a fishing boat working out of the port of Fano on the Adriatic coast of Italy.

 

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Citation: Alessandro Chechi, Raphael Contel, Marc-André Renold, “Case Victorious Youth – Italy v. J. Paul Getty Museum,” Platform ArThemis (http://unige.ch/art-adr), Art-Law Centre, University of Geneva.

The “Victorious Youth” – a life-size bronze statue created sometime between the 4th and 2nd century BC – is at the centre of an ongoing dispute between Italy and the J. Paul Getty Museum. This statue was discovered in 1964, caught up in the nets of a fishing boat working out of the port of Fano on the Adriatic coast of Italy. It changed hands a number of times until 1977, when it was acquired by the Getty Museum. The major contentious points of this dispute are whether the statue was found in international waters and whether it lawfully belongs to the Museum’s collection.

I. Chronology

Pre 1970 restitution claims – Ongoing dispute

  • 1964: A life-size bronze statue of a victorious athlete was fortuitously recovered by Italian fishermen working out of the port of Fano, on the northern Adriatic coast of Italy. Upon their return to Fano, the fishermen sold the “Victorious Youth” (as the bronze came to be called) to a local art dealer, Giacomo Barbetti. For a time, Barbetti and his two brothers concealed the statue at the home of Father Giovanni Nagni. In May 1965, it was transferred to Gubbio, where it was seen by a number of potential buyers. Eventually Barbetti sold the bronze to an unidentified buyer from Milan. After the sale, the Victorious Youth changed hands a number of times and was later seen in a Brazilian monastery and in London.[1]
  • 1966: The fishermen, Mr. Barbetti and his accomplices were charged with handling stolen property in violation of Article 67 of the Italian Law of 1 June 1939, No. 1089. The prosecution reached the Court of Appeals of Rome, which overturned the convictions with a judgment of 8 November 1970 because: (i) the prosecutors did not establish that the statue was found in Italian waters, and (ii) there was insufficient evidence demonstrating that the statue was of “artistic and archaeological interest”.
  • 1972: The Victorious Youth resurfaced in Munich, in the shop of Herzer Heinz, an antique dealer. It was seen by Thomas Hoving, the former Director of the New York Metropolitan Museum of Art. Hoving asserted that the statue was being restored.[2]
  • 1974: Herzer Heinz sold the bronze to Artemis, a Luxembourg-based corporation.[3]
  • 1977: INTERPOL – which cooperated with the Italian Carabinieri on this case since 1970 – informed Italian authorities that the Victorious Youth had been sold by Artemis to the Getty Trust for US$3.95 million.[4]
  • 1978: The Victorious Youth was publicly displayed for the first time at the Getty Museum. Ever since, it has become the signature piece of the Museum as the “Getty Bronze”.
  • 1989: The Italian Minister of Cultural Heritage invited the Getty Museum to return the Victorious Youth to Italy, but it was to no avail.[5]
  • 2007: The Italian Ministry and the J. Paul Getty Trust reached an agreement which provided for the restitution of 40 objects to Italy and the establishment of a programme of cultural collaboration between Italy and the Getty Museum.[6] The deal was signed only after both sides agreed to set aside the question of the return of the Victorious Youth pending a legal process before the Tribunal of Pesaro.[7]
  • 2007: The proceedings before the Tribunal of Pesaro concerning the illicit exportation of the Victorious Youth were dismissed upon request of the public prosecutor on the grounds that the statute of limitations had expired and that there was no one to prosecute. With an order of 2009, however, the prosecutor demanded the forfeiture (confiscation) of the statue since it had been exported in contravention of Italian laws.[8]
  • 2010: With an order of 10 February 2010, Luisa Mussoni, Pre-Trial Judge (Giudice per le Indagini Preliminari) at the Tribunal of Pesaro, ruled that the Victorious Youth was exported in violation of Italian legislation and, accordingly, issued an order for its immediate forfeiture and restitution.[9] The Getty appealed the order to the Court of Cassation.[10]
  • 18 January 2011: The Court of Cassation issued a very short and rather odd judgment. The Court did not rule on the legitimacy of the forfeiture order but only decided that the case should be remitted to the Tribunale of Pesaro for a new examination on the merits due to the erroneous qualification of the action launched against the 2010 order.[11]
  • March 2011: Gian Mario Spacca, President of the Italian region of Marche, where Fano is located, went to Los Angeles to meet representatives of the Getty Museum and to offer a compromise. In an effort to end this long-running dispute, Spacca proposed to adopt an innovative peace treaty whereby the parties would share the Victorious Youth in a cultural exchange. Museum representatives said that it was not possible to discuss an agreement since legal issues were ongoing in Italian courts.[12]
  • 2012: With an order of 3 May 2012, Maurizio Di Palma, Pre-Trial Judge at the Tribunal of Pesaro, upheld the 2010 order for the forfeiture of the statue, thereby confirming that it was illegally exported from Italy.[13]

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II. Dispute Resolution Process

Diplomatic channel – Judicial claim – Judicial decision – Negotiation

  • The Italian Ministry of Cultural Heritage demands the restitution of the Victorious Youth on the grounds that the bronze is part of the Italian patrimony, that it was removed from Italian territory in violation of the applicable legislation, and that the curators of the Getty Museum were wilfully negligent in the acquisition of the statue.
  • The Getty Museum called the Tribunal’s order of 2010 “flawed both procedurally and substantively” in a statement.[14] On the one hand, the Museum insists that the 1977 acquisition was legitimate as it exercised the required due diligence. In this respect, the Getty notes that in 2007 the Tribunal of Pesaro dismissed a criminal case regarding the bronze (for the expiry of the statute of limitations) and established that the Getty “was to be considered a good-faith owner”.[15] On the other hand, the Museum argues that Italian legislation is not the applicable law in this case as there is no real link between the Victorious Youth and Italy’s patrimony for the following reasons: (i) the statue was made in ancient Greece; (ii) it was netted in international waters; and (iii) only briefly passed through Italy before being spirited abroad.
  • The fact that the Getty declined to discuss the deal proposed in March 2011 by the President of Marche suggests that the Museum is not disposed to negotiate an extra-judicial solution of the dispute for the time being.[16]

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III. Legal Issues

Choice of law – Due diligence – Enforcement of foreign law – Illicit exportation – Ownership – Procedural issue

  • Although this case raises several interesting legal issues, the main legal questions are: (i) whether Italian law is the applicable law; (ii) whether the order of confiscation is lawful; and (iii) whether the Getty Museum exercised the required due diligence in acquiring the Victorious Youth.
  • As far as the applicable law is concerned, the relevant Italian legislation established that all antiquities found in Italy were the property of the State. It was therefore illegal to export any archaeological artefact from the country.[17]
  • The Pre-Trial Judge of the Tribunal of Pesaro conceded that the statue was very likely found in an area beyond territorial waters.[18] Nonetheless, the Judge confirmed that the applicable law is the Italian law because the conduct constituting the crime of illicit export had taken place on Italian territory. In order to justify this assertion, the Pre-Trial Judge referred to a previous decision issued by the Tribunal of Sciacca.[19] The Judge held that, in accordance with international law, a ship flying the Italian flag is to be considered as a prolongation of the Italian territory. The Judge then ruled that the nets of a fishing vessel flying the Italian flag are a prolongation of the Italian territory. Consequently, the Judge asserted that the Victorious Youth became the property of the State in 1964, when it was caught in the nets of the Italian fishing boat.[20]
  • An issue related to the determination of the applicable law is that of the recognition and enforcement of foreign protective cultural heritage laws. National statutes tend to take two forms. First, there are the patrimony laws that provide that ownership of certain categories of cultural objects is vested ipso iure in the State. Second, there are norms prohibiting or restricting the export of cultural materials. This distinction is critical because only patrimony laws enjoy extraterritorial effect. On the contrary, in the absence of inter-State agreements, export regulations are not enforced by foreign States.
  • The Pre-Trial Judge tried to answer the question whether Italian law vesting ownership rights in the State as well as the norms banning the export of valuable archaeological objects were capable of affecting the validity of the sale of the Victorious Youth.
  • The Judge relied on the Italian conflict-of-law rule in matters of property and possession: the lex rei sitae.[21] According to this rule, a domestic court must apply the substantive law of the place where the property was located at the time of the last transaction. The Judge affirmed that the relevant place for the determination of the applicable legal regime was the Italian territory, i.e. the place where the object was located at the moment of its illicit exportation. However, this finding is flawed. The Judge did not consider that the connecting factor for movable property is very “unstable”. This means that if a transaction is concluded abroad following exportation – as in the case of the Victorious Youth – then the foreign substantive law in force should apply. Hence, Italian law would have applied to this case only if the statue had not left the Italian territory at the time of its acquisition by the Getty Museum.[22]
  • To summarize, the Pre-Trial Judge erroneously excluded the application of any law other than Italian legislation simply because the illicit exportation of the Victorious Youth was committed in Italy. Moreover, the Judge failed to address the question whether any of the existing international treaties is applicable to the dispute between Italy and the United States.[23]
  • As far as the issue of the legality of the order of forfeiture is concerned, the Getty raised three objections. First, the forfeiture is unlawful because it stems from a criminal action (concerning the illegal exportation of the statue) which was dismissed in 2007 on the grounds that the statute of limitations had run out and that there was no one to prosecute. Second, the forfeiture order is illogical because it regards an object which – as stated by the same Judge – already belongs to the State’s patrimony and which is located abroad. Third, the order is flawed because it concerns an object that had been acquired by a person which was not involved in its illicit exportation.
  • The Pre-Trial Judge dismissed these objections as follows. As for the first argument, the Judge provided several precedents demonstrating that the confiscation of certain categories of objects is compulsory and does not necessarily depend on the conviction of those who have been accused of a crime.[24] With regard to the second objection, the Judge reasoned that the adoption of a formal act of forfeiture, to be transmitted to foreign authorities for recognition, was necessary precisely because the bronze was located abroad. In the view of the Judge, this was the only manner through which the Italian State could exercise the right of ownership.[25] With respect to the third objection, the Judge affirmed that, if not fully aware of its illicit provenance, the Getty had been grossly negligent in buying the statue. In effect, it appears that Getty officials decided to buy the Victorious Youth even if they were aware that it came from Italy and that it had been at the centre of a criminal proceeding whereby Italian authorities had prosecuted those who had found and concealed it. In spite of this, Getty officials did not contact the Italian authorities to verify the legality of the exportation. Moreover, it appears that they only relied on the legal advice of the seller’s lawyers (who had an obvious interest in concluding the sale).[26]

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IV. Adopted Solution

  • As the dispute is still ongoing, one can only speculate on how the case will be settled.
  • On the one hand, it remains to be seen whether the 2010 order of forfeiture will be executed by US authorities. Arguably, the enforcement will depend on whether US authorities will accept the determination provided by the Italian Pre-Trial Judge. In other words, it is yet to be seen whether US authorities will endorse the reasoning with which the Judge of Pesaro affirmed that the Victorious Youth belongs to the Italian State from the moment it was found.
  • On the other hand, the conclusion of another bilateral agreement seems problematic because the Museum appears determined to pursue the judicial avenue and turn down any compromise.[27] The most obvious reason for this is that the Victorious Youth is a main attraction of the Getty’s collection. Another reason is that the Getty believes that the Italian case is not strong in light of Italian and US law and jurisprudence.
  • However, it cannot be excluded that, in the end, the Italian Government will bring the Getty to the negotiating table given its power to threaten to bar access to its art as a source of loans. This is a strategy that has been used several times in the recent past. It is a very real possibility given the substantive evidence demonstrating the Getty’s lack of good faith and scrupulousness at the moment of the acquisition. Although this may not be decisive to confirm the hypothesis that Italy’s ownership title to the Victorious Youth was not extinguished as a result of the sales occurred after the find, it may lead the Museum to enter into negotiations in order to avoid a new scandal.

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V. Comment

  • It is widely held that the Victorious Youth, which is attributed to the greatest Greek sculptor Lysippos, is one of the finest original Greek bronzes to have survived from the classical era. Its uniqueness explains, in part, why it is at the heart of this complex legal dispute.
  • There are various reasons why the Italian claim may not succeed. First, there is no evidence that the discovery was made in Italian waters. Italian prosecutors failed to establish this in 1968 and it seems impossible to prove it nearly 40 years later. However, even if the statue were found in Italian waters, the claim may be dismissed as Italian authorities waited many years to demand restitution. In any case, even the Pre-Trial Judge of the Tribunal of Pesaro has conceded that the statue was very likely found in international waters.[28]
  • Second, and consequently, the claim that the Victorious Youth is part of the Italian cultural heritage seems rather artificial. Given its Greek origin and the brief – and clandestine – stay in Italy, the statue’s link with the national patrimony is very tenuous. For this reason, it can be affirmed that there is no genuine context to which it could meaningfully be returned.
  • Third, the precedent on which Italy relies (the theory that the nets of a fishing vessel are the prolongation of the territory of the flag’s State) to affirm that the statue belongs to the Italian State and that Italian law applies cannot be fully subscribed as it entails a dangerous side-effect. If an artwork is enmeshed in the nets of a vessel whose flag’s State apply the law of finds, the theory under consideration may hamper the right of the country of origin of such artefact to make a claim. The law of finds becomes applicable when the owner of cultural materials is not known and allows the person who discovers and reduces them to actual possession to become the owner.[29] In sum, this precedent, combined with the law of finds, allows commercial treasure hunters to search and exploit underwater heritage for purely commercial reasons.[30]
  • Nevertheless, Italy is justified in pursuing this claim only on the ethical plane. In other words, the Italian claim is defensible if seen as part of the international effort to thwart the illicit trade in antiquities and to force cultural institutions to turn over works which have been acquired dishonestly. Based on the available evidence, Getty officials were not in good faith at the moment of the acquisition of the Victorious Youth.

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VI. Sources

a. Bibliography

  • Lanciotti, Alessandra. “The Dilemma of the Right to Ownership of Underwater Cultural Heritage: The Case of the ‘Getty Bronze’.” In Cultural Heritage, Cultural Rights, Cultural Diversity. New Developments in International Law, edited by Silvia Borelli and Federico Lenzerini, 301-326. Leiden/Boston: Martinus Nijhoff Publishers, 2012.
  • Scovazzi, Tullio, and Roberta Garabello. The Protection of the Underwater Cultural Heritage. Before and After the 2001 UNESCO Convention. Leiden: Martinus Nijhoff Publishers, 2003.
  • Scovazzi, Tullio. “Dal Melqart di Sciacca all’Atleta di Lisippo.” Rivista di diritto internazionale privato e processuale (2011): 5-18.

b. Court decisions

  • Tribunal of Sciacca, 9 January 1963, Foro Italiano, 1963, I, p. 1317.
  • Tribunal of Pesaro, Order of 12 June 2009, No. 2042/07 RGNR.
  • Tribunal of Pesaro, Order of 10 February 2010, No. 2042/07 RGNR.
  • Court of Cassation, 18 January 2011, No. 6558.

c. Legislation

  • Law of 1 June 1939, No. 1089, concerning the Protection of Objects of Artistic and Historic Interest.
  • Italian Civil Code, Articles 822 and 826.

d. Media

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[1] Tribunal of Pesaro, Order of 10 February 2010, No. 2042/07 RGNR, pp. 4, 7.

[2] Ibid., pp. 4-5.

[3] It appears that Artemis was created ad hoc in order to craft a false provenance and sell the statue. Ibid., pp. 1, 6-7.

[4] Ibid., p. 6.

[5] Ibid., p. 8.

[6] See: The J. Paul Getty Trust Press Release – Italian Ministry of Culture and the J. Paul Getty Museum Sign Agreement in Rome, August 1, 2007, accessed May 25, 2012, http://www.getty.edu/news/press/center/italy_getty_joint_statement_080107.html; and The J. Paul Getty Trust Press Release – Italian Ministry of Culture and the J. Paul Getty Museum Sign Agreement in Rome, September 25, 2007, accessed May 25, 2012, http://www.getty.edu/news/press/center/italy_getty_joint_statement_092507.html.

[7] The accord on this point was crucial as in 2006 negotiation had reached an impasse due to the disagreements between the parties over the Victorious Youth’s ownership status. For instance, in 2006 the then Italian Minister of Culture, Francesco Rutelli, threatened a cultural embargo on the Getty if the Victorious Youth was not returned by July 2007.

[8] Tribunal of Pesaro, Order of 12 June 2009, No. 2042/07 RGNR, pp. 2-3.

[9] Tribunal of Pesaro, Order of 10 February 2010, No. 2042/07 RGNR, p. 31.

[10] The J. Paul Getty Trust Press Release – Statement about the Ruling in Pesaro on the Getty Bronze, February 11, 2010, accessed May 25, 2012, http://www.getty.edu/news/press/center/pesaro.html.

[11] Court of Cassation, 18 January 2011, No. 6558.

[12] Nick Allen, “Italy Offers to Share Disputed Statue with Getty Museum,” The Telegraph, March 28, 2011, accessed August 25, 2011, http://www.telegraph.co.uk/culture/art/art-news/8411791/Italy-offers-to-share-disputed-statue-with-Getty-Museum.html.

[13] Jason Felch, “Italian Court Upholds Claim on Getty Bronze,” Los Angeles Times, May 4, 2012, accessed May 24, 2012, http://www.latimes.com/entertainment/arts/culture/la-et-getty-bronze-ruling-20120504,0,2759444.story.

[14] The J. Paul Getty Trust Press Release – Statement about the Ruling in Pesaro on the Getty Bronze, February 11, 2010, accessed May 25, 2012, http://www.getty.edu/news/press/center/pesaro.html.

[15] Tribunal of Pesaro, Order of 12 June 2009, No. 2042/07 RGNR, p. 3.

[16] The J. Paul Getty Trust Press Release – Statement from Ron Hartwig, Vice President of Communications for the Getty, Regarding the Visit of the Governor of the Marche Region to Los Angeles, March 28, 2011, accessed May 25, 2012, http://www.getty.edu/news/press/center/statement_marche_region.html.

[17] The relevant provisions were set forth in the Italian Civil Code and in Law No. 1089 of 1939 (replaced by Legislative Decree No. 42 of 2004, Code of Cultural Heritage and Landscape). According to the Civil Code, antiquities and works of art qualify as State property. More precisely, they can be either considered part of the “public demesne” (“demanio pubblico” – Article 822) or of the “inalienable assets of the State” (“patrimonio indisponibile dello Stato” – Article 826). Whilst the objects belonging to the “demanio pubblico” are subject to a blanket prohibition on sale, those belonging to the “patrimonio indisponibile dello Stato” can be transferred with a specific authorization.

[18] Tribunal of Pesaro, Order of 12 June 2009, No. 2042/07 RGNR, pp. 6-7.

[19] Tribunal of Sciacca, 9 January 1963, Foro Italiano, 1963, I, p. 1317. This case concerned another masterpiece that fortuitously became entangled in fishing nets in south of Sicily beyond Italian territorial waters.

[20] Tribunal of Pesaro, Order of 12 June 2009, No. 2042/07 RGNR, pp. 9-10.

[21] This rule is set forth in Article 51 of Law No. 218 of 1995 on the Reform of the system of private international law.

[22] Alessandra Lanciotti, “The Dilemma of the Right to Ownership of Underwater Cultural Heritage: The Case of the ‘Getty Bronze’,” in Cultural Heritage, Cultural Rights, Cultural Diversity. New Developments in International Law, ed. Silvia Borelli and Federico Lenzerini (Leiden/Boston: Martinus Nijhoff Publishers, 2012), 301, 311-316.

[23] Ibid., p. 317.

[24] Tribunal of Pesaro, Order of 10 February 2010, No. 2042/07 RGNR, p. 21 ff.

[25] Tribunal of Pesaro, Order of 12 June 2009, No. 2042/07 RGNR, pp. 9-10.

[26] Ibid., p. 7 ff., 25 ff. It is noticeable that Mr. J. Paul Getty died in 1976, but left instructions to acquire the Victorious Youth on the condition that permission would be obtained by Italian authorities. As no permission was issued, it becomes evident that the trustees of the Museum did not comply with such instructions when they bought the bronze. Alessandra Lanciotti, pp. 302-303.

[27] The J. Paul Getty Trust Press Release - Statement from Ron Hartwig, Vice President of Communications for the Getty, Regarding the Visit of the Governor of the Marche Region to Los Angeles, March 28, 2011, accessed May 25, 2012, http://www.getty.edu/news/press/center/statement_marche_region.html

[28] Tribunal of Pesaro, Order of 12 June 2009, No. 2042/07 RGNR, pp. 6-7.

[29] Tullio Scovazzi, “Dal Melqart di Sciacca all’Atleta di Lisippo,” Rivista di diritto internazionale privato e processuale (2011): 5, at 8, 11-13.

[30] Tullio Scovazzi and Roberta Garabello, The Protection of the Underwater Cultural Heritage. Before and After the 2001 UNESCO Convention (Leiden: Martinus Nijhoff Publishers, 2003), 20-21.

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