Art law USA

Greek bronze will stay in the Getty Villa

Museum rejects Italian judge’s decision because the Fano Athlete was found outside Italian waters

BOSTON. The J. Paul Getty Trust is appealing against the decision by an Italian judge that a key antiquity in the Los Angeles museum’s collection is Italian state property. The Getty owns the Greek bronze, and it will stay in the US, the museum says. The work, a 2,500-year-old bronze statue of the Fano Athlete, also known as the Victorious Youth, is a star object in the Getty Villa, Malibu. In February, an Italian appeals court judge, Lorena Mussoni, based in Pesaro, ordered that the work be seized and returned to Italy (The Art Newspaper, March 2010, p13). But the Getty says the work was found in the 1960s outside Italian waters, and Italy has no claim on it. While the museum has asked that the confiscation order be stayed pending the appeal to Italy’s highest court, the court denied the request.

It was not immediately clear in February how the Italian confiscation order could be enforced. Any removal of the work from the Getty would require a grant of authority by a US court in a proceeding to enforce the foreign judgment. During any such proceeding, the Getty would raise numerous objections to the Italian decision. “If the bronze was found in international waters, rather than Italian national waters, I am doubtful that any US court would recognise it as stolen,” Patty Gerstenblith, a law professor at DePaul University and president of the Lawyers’ Committee for Cultural Heritage Preservation, told The Art Newspaper. “While the Italians claim that the bronze was illegally exported, illegal export does not, by itself, make the bronze stolen or otherwise illegal in the US.” She added that Italy also faces “the significant hurdle of the statute of limitations”, making it too late to sue because the country has known where the statue was for decades.

The Getty’s claim that it owns the bronze is set out in a legal memorandum dated November 2006 and addressed to the Italian ministry of culture. The Getty unequivocally owns the statue, the memo concludes, because it was not found in Italian soil or Italian territorial waters, and therefore never became Italian state property under Italy’s 1939 antiquities ownership law. It was drawn up in fishing nets 30 to 40 miles off the Italian coast, “well outside of Italian territorial waters”, which stretched only 6.9 miles from shore in 1964, when the work was discovered, the memorandum argues.

The Getty acquired the work in 1977, after Italian courts concluded that “there was no evidence that the object was found in Italian territorial waters”, the memo says, citing an unsuccessful Italian criminal trial in 1966 in which the Italians who bought the statue were acquitted of dealing in stolen property. The acquittal was based on lack of evidence that the work was found in Italian waters. In 1968, Italy’s high court affirmed the decision, and that was the law in Italy in 1977 when the Getty bought the statue, the memo says, adding that Italy’s “failure of proof is fatal”. The Getty paid almost $4m for the work.

According to Lorena Mussoni, the Italian judge, the bronze became state property because it was found in 1964 by a vessel flying the Italian flag, even though it was in international waters, and having been so found, it belongs to Italy. Her second theory is that the work, having been in Italy for a few years after being found in international waters, was exported in violation of Italian antiquities export laws. 

In November 2007, a lower court in Pesaro rejected the local prosecutor’s claim for the work, saying that all fishermen involved in the original find were dead, it was too late to bring charges on any crime, and the Getty should be considered to have bought the work in good faith.

The Getty memorandum rejects Italy’s claim that, after the discovered work allegedly stayed in Italy for a short time, it was exported without a proper licence—the basis of Italy’s current claim of ownership. Instead, the memo argues, Italian, US and international law does not, and did not in the 1970s, “require the transfer of the statue to Italy” solely based on possible export violations. The memo says that in a 2006 dossier, Italy conceded that it has “no viable legal claim” to the statue. A claim now is unjustified, because Italy has been on notice for decades that the Getty had the bronze, the memo says. The ethical reasons normally invoked to justify art restitution do not apply here, the memo adds, because the work “is Greek in origin, not Italian”, and was likely to have been removed from ancient Greece by Romans before being lost at sea. Giving the statue to Italy would violate the Getty’s legal duties to protect its art for the public, the memo concludes.

In 2007, Italy and the Getty Museum reached an agreement under which the museum returned 40 antiquities to Italy. In February the Getty launched a partnership with museums and archaeologists in Sicily.

This article has been updated to reflect the Italian court's rejection of the Getty's request for a stay on the order to seize the bronze.

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