Case Victorious Youth - Italy v. J. Paul Getty Museum
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Alessandro Chechi
Raphael Contel
Marc-André Renold
Reference: 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, October
2011. All rights reserved ©.
Case Victorious Youth – Italy v. J. Paul
Getty Museum
Italy/Italie – J. Paul Getty Museum – Archaeological object/objet
archéologique – Pre 1970 – Ongoing dispute/Litige en cours – Judicial
claim/action en justice – Judicial decision/décision judiciaire –
Negotiation/négociation – Ownership/propriété – Procedural issue/limites
procédurales – Choice of law/droit applicable – Illicit
exportation/exportation illicite
The case of the Victorious Youth is an ongoing dispute between Italy and the
J. Paul Getty Museum. Created sometime between the 4th and 2nd century
BC, found by Italian fishermen in the Adriatic Sea in 1964, this life-size
bronze statue 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. The most controversial step in
this lengthy fray was marked on 10 February 2010, when a preliminary
investigation judge at the Tribunale of Pesaro ruled that the Victorious
Youth was illicitly exported and, accordingly, ordered its seizure. The Getty
Museum challenged this order before the Italian Court of Cassation. With a
decision of 18 February 2011, the Court of Cassation remanded the case to
the Tribunale of Pesaro for further examination on the merits.
I. Chronology; II. Dispute Resolution Process; III. Legal Issues; IV.
Adopted Solution; V. Comment; VI. Sources.
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I. Chronology
Pre 1970 – Ongoing dispute
- 1964: A life-size bronze statue of a victorious athlete was fortuitously recovered off the
northern Adriatic coast by Italian fishermen from the Italian town of Fano. When the
fisherman returned to Fano, they decided to sell the Victorious Youth (as the bronze came
to be called). Shortly afterwards, the statue was sold to 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 seen in a Brazilian monastery
and in England.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 the 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”.2
- 1972: The Victorious Youth resurfaced in Munich, in the shop of Herzer Heinz, an antique
dealer, where it was seen by Thomas Hoving, the former Director of the New York
Metropolitan Museum of Art. He asserted that the statue was being restored.3
- 1974: Herzer Heinz sold the bronze to the Luxembourg-based corporation Artemis. It
results from the evidence at trial that Artemis was created ad hoc in order to craft a false
provenance and sell the statue.4
- 1977: INTERPOL – which was cooperating with the Italian Carabinieri on this case since
1970 – informed the Italian authorities that the Victorious Youth had been sold by Artemis
to the Getty Trust for $3.95 million.5
- 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 Director General of the Italian Ministry of Cultural Heritage invited the
Director of the Getty Museum to return the Victorious Youth to Italy, but to no avail.6
- 2007: The Italian Ministry of Cultural Heritage and the J. Paul Getty Trust concluded
an agreement regarding a number of artefacts in the Getty Museum’s antiquities collection.
The agreement provided for the return of 40 objects to Italy and a wide cultural
collaboration including the loan of important works of art, joint exhibitions, research,
conservation, and restoration projects. Crucially, the deal was signed only after both sides
agreed to set the question of the Victorious Youth aside pending a legal process before the
1
Tribunal of Pesaro, Order of 10 February 2010, No. 2042/07 RGNR, pp. 4, 7.
2
Ibid., pp. 4-5.
3
Ibid., p. 5.
4
Ibid., pp. 1, 6-7.
5
Ibid., p. 6.
6
Ibid., p. 8.
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Tribunal of Pesaro concerning its illegal exportation. The accord of the parties on this
point was crucial as in 2006 negotiation had reached an impasse due to the disagreements
between the Italy and the Getty over the Victorious Youth’s ownership status.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. At the same time, however, the prosecutor demanded the 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, preliminary investigation judge
at the Tribunal of Pesaro, ruled that the Victorious Youth was exported illicitly and,
accordingly, issued an order for its immediate confiscation and restitution.9 This order
followed the order of 12 June 2009, which dwelled on the question of jurisdiction. The
Getty appealed the 2010 order to the Court of Cassation, the Italian Supreme Court.
- 2011: The Court of Cassation did not annul the seizure’s order but sent back the case to
the Tribunale of Pesaro due to the erroneous qualification of the action launched against the
order of 15 February 2010.10
- 2011: In 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 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.11
II. Dispute Resolution Process
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 smuggled out of Italy
without the proper export documents, and that the Getty Museum was wilfully negligent in
carrying out due diligence before buying the work. However, it is acknowledged that the
Getty Museum took no part in the illicit exportation of the bronze.
- The Getty Museum called the Tribunal’s order of 2010 “flawed both procedurally and
substantively” in a statement.12 On the one hand, the Museum insists that the 1977
acquisition was legitimate as it exercised the required due diligence. In this respect, the
7
The J. Paul Getty Trust Press Release - Italian Ministry of Culture and the J. Paul Getty Museum Sign Agreement in
Rome, 1 August 2007; and The J. Paul Getty Trust Press Release - Italian Ministry of Culture and the J. Paul Getty
Museum Sign Agreement in Rome, 25 September 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
Court of Cassation, 18 January 2011, No. 6558.
11
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.
12
The J. Paul Getty Trust Press Release - Statement about the Ruling in Pesaro on the Getty Bronze, 11 February 2010.
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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”.13 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.14
III. Legal Issues
Choice of law – Illicit exportation – Ownership – Procedural issue
- The legal questions at stake 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, it is worth noting that the relevant provisions were
set forth in Law No. 1089 of 1939.15 According to this law, all antiquities found in Italy
were the property of the State. It was therefore illegal to export any archaeological artefact
from the country without government permission.
- The Judge of the Tribunal of Pesaro conceded that the statue was very likely found in an
area beyond territorial waters.16 Nonetheless, the Judge confirmed that the applicable law is
the Italian law by making use of the precedent established by the Tribunal of Sciacca.17 In
accordance with international law, the Judge held that a ship flying the Italian flag is to be
considered as a prolongation of the Italian territory. The Judge further ruled that the nets of a
fishing vessel flying the Italian flag are a prolongation of the Italian territory. In other
words, the Judge treated the Victorious Youth as if it had been found in the Italian territory.
This entails that the statue became the property of the State since the moment when it was
found and justifies the application of Italian legislation.18
- An issue related to the determination of the applicable law is that of the recognition and
enforcement of protective cultural heritage laws by foreign States. 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
13
Tribunal of Pesaro, Order of 12 June 2009, No. 2042/07 RGNR, p. 3.
14
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, 28 March 2011.
15
Replaced by Legislative Decree No. 42 of 22 January 2004, Code of the Cultural and Landscape Heritage.
16
Tribunal of Pesaro, Order of 12 June 2009, No. 2042/07 RGNR, pp. 6-7.
17
Tribunal of Sciacca, 9 January 1963, Foro Italiano, 1963, I, p. 1317. This case concerned another masterpiece that
fortuitously became entangled in fishing nets south of Sicily beyond Italian territorial waters.
18
Tribunal of Pesaro, Order of 12 June 2009, No. 2042/07 RGNR, pp. 9-10.
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only patrimony laws enjoy extraterritorial effect. On the contrary, in the absence of inter-
State agreements, export regulations are not enforced by foreign States.
- As far as the issue of the legality of the order of confiscation is concerned, the Getty raised
three objections. The first is that the confiscation stemmed 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.
The Judge provided several precedents demonstrating that the confiscation of certain
categories of things is compulsory and does not necessarily depend on the conviction of
those who have been accused of a crime.19 The second objection was that the Judge issued
an order of confiscation as regards an object which already belonged to the State’s
patrimony and which was located abroad. The Judge reasoned that the adoption of a formal
act of confiscation, 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.20 The third
objection was that the order of confiscation concerned an object that had been acquired by a
person which was not involved in the illicit exportation of the object in question. The Judge
defeated this objection by pointing to the lack of good faith of the Getty at the moment of
the acquisition. By ascertaining the available evidence, 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 evident interest in concluding the sale).21
IV. Adopted Solution
- As the dispute is still ongoing one can only speculate on how the case will be settled.
- On the one hand, if the Tribunale of Pesaro will reiterate the order of confiscation, it
remains to be seen whether such an order will be executed by US authorities. Arguably,
the enforcement will depend on whether US authorities will accept the determination
provided by the Italian Judge, according to which the sales that have occurred after the
fortuitous find had not had the effect of passing ownership title to the Getty. In other words,
it has to be seen whether US authorities will endorse the reasoning with which the Judge of
Pesaro has affirmed that the Victorious Youth belongs to the Italian State since the
moment when 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
19
Tribunal of Pesaro, Order of 10 February 2010, No. 2042/07 RGNR, p. 21 ff.
20
Ibid.
21
Ibid., p. 7 ff., 25 ff.
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compromise.22 The most obvious reason for this is that the Victorious Youth is a centrepiece
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 manage to
bring the Getty to the negotiating table given its power to threaten to bar access to its
art as a source of loans (this strategy has been used several times in the recent past) and
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 has not been
extinguished as a result of the sales occurred after the find, it may lead the Museum to enter
into negotiation to avoid reputational harm and a new scandal.
V. Comment
- It is widely held that the Victorious Youth, which is attributed to the greatest sculptor
Lysippos, is one of the finest original Greek bronzes to have survived from the classical era.
The statues of Greek art perished after the victory of Christianity – when it was considered
pious duty to smash any image of idols and gods. This explains why it has been 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
had been found in Italian territorial waters, Italy’s claim may be dismissed as it waited many
years to make a claim, as the Bronze has been publicly displayed since 1978. In any case,
even the Judge of the Tribunal of Pesaro has conceded that the statue was very likely found
in an area beyond territorial waters.23
- 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. This is represented by the fact that, 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 the 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.24 In sum, this
precedent, combined with the law of finds, allows commercial treasure hunters to search and
22
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, 28 March 2011.
23
Tribunal of Pesaro, Order of 12 June 2009, No. 2042/07 RGNR, pp. 6-7.
24
Tullio Scovazzi, “Dal Melqart di Sciacca all’Atleta di Lisippo,” Rivista di diritto internazionale privato e processuale
(2011): 5, at 8, 11-13.
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exploit underwater heritage for purely commercial reasons.25 In sum, the decisions of the
preliminary investigation judge at the Tribunal of Pesaro can be seen as incautious attempts
to stretch the limits of legal interpretation in order to overcome the procedural obstacles that
encumber the recovery of artworks unlawfully removed in the past.
- On the other hand, 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. In effect, available evidence signals that Getty officials were not
in good faith at the moment of the acquisition of the Victorious Youth.
VI. Sources
a. Bibliography
- 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.
d. Media
- The J. Paul Getty Trust Press Release - Italian Ministry of Culture and the J. Paul Getty
Museum Sign Agreement in Rome, 1 August 2007.
- Povoledo, Elisabetta. “Italy Presses Its Fight for a Statue at the Getty.” The New York Times,
January 15, 2010, accessed August 25, 2010,
http://www.nytimes.com/2010/01/16/arts/design/16bronze.html
- The J. Paul Getty Trust Press Release - Italian Ministry of Culture and the J. Paul Getty
Museum Sign Agreement in Rome, 25 September 2007.
25
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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- The J. Paul Getty Trust Press Release - Statement about the Ruling in Pesaro on the Getty
Bronze, 11 February 2010.
- Parchin, Stan. “Italian Court Orders Seizure of Getty Museum’s Greek Bronze Statue.” Art
Museum Journal, February 11, 2010, accessed August 25, 2010,
http://artmuseumjournal.com/getty_greek_bronze.aspx
- 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, 28 March 2011.
- Allen, Nick. “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.
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