By Claire Dettelbach*

Screen Shot 2018-06-22 at 1.28.37 PMWho is the rightful owner of a statue which was cast by the Ancient Greeks, discovered by Italians in international waters, subject to various international transactions, and which is now displayed in a United States museum? This is the question surrounding the “Victorious Youth”, a 3rd century BCE Greek bronze thought to have been inspired by or even made by the famous sculptor Lysippos. It is one of a very small number of surviving life-sized Greek bronzes. After lying submerged deep below the Adriatic Sea for centuries, the statue stands proudly on display at the John Paul Getty Museum in Los Angeles since 1978 and has become such a mainstay that its alternative name is the “Getty Bronze”. However, despite its prominence at the Getty, the statue’s presence has been far from assured, and just recently the Getty’s ownership of it has grown even more uncertain.

On June 8, 2018, Italy’s Court for the Preliminary Investigations of Pesaro ruled that the “Victorious Youth” should be returned to Italy on the grounds that it was illegally exported following its initial discovery over fifty years ago. Faced with this ruling, the Getty says it plans to appeal the decision to Italy’s highest judicial authority, the Court of Cassation in Rome. This is not the first time the “Victorious Youth” has appeared in Italian courts. In fact, the saga of its complex and contentious past began the moment it was lifted out of the ocean and brought to mainland Italy.

In 1964, Italian fishermen found the bronze in the Adriatic Sea and brought it, concealed and undeclared, to the Italian port of Fano. They kept it hidden first in a garden patio and then buried in a cabbage patch while they searched for a buyer. A month later they sold it for $4,000 to art dealer Giacomo Barbetti, who kept the statue concealed in a church in Gubbio until late 1965, when he began showing it to potential buyers. One European buyer, immediately sensing the importance of the bronze, alerted the Carabinieri (Italy’s national police) of its existence. But by the time a police raid of the church was conducted, Barbetti and the bronze were long gone. In 1966, Barbetti, his accomplices, and the fisherman were charged with handling illegally exported goods, but the conviction was thrown out on the grounds that there was insufficient evidence that the statue was found in Italian waters or that it was of any historical importance.

Rumors circulated regarding the bronze’s whereabouts for the following three years. It now seems probable that it was illegally exported out of Italy into Brazil along with a shipment of medical equipment. It was not until 1969 that it resurfaced in London in the possession of the Luxembourg-based art Consortium Artemix Ltd, who bought it for $700,000. Heinz Herzer, a member of the Artemis group, immediately recognized the statue’s significance and had it shipped from London to his Munich studio. Wanting to sell the bronze for the price he knew it was worth, Herzer sought the opinion of a reputable expert to back up his attribution to Lysippus: for this purpose, he sent photographs to the British Museum’s curator of Greek and Roman Art, Bernard Ashmole. Ashmole agreed with Herzer’s attribution. In 1972, Ashmole brought the bronze to the attention of J. Paul Getty. Instantly enraptured by the “Victorious Youth”, Getty soon began negotiations on a deal of joint custody with Thomas Hoving, former director of the Metropolitan Museum of Art. Before signing on, Getty had extensive research done into the provenance of the work and demanded documented proof of Herzer’s clear title to the work. When Herzer was unable to procure such documentation, Getty dropped the deal. Herzer ended up selling the bronze in 1974 to a Luxembourg-based buyer. In 1977, after J. Paul Getty himself passed away, Burton Fredericksen, the chief curator of the Getty at the time, purchased the “Victorious Youth” for $3.95 million (https://chasingaphrodite.com). Fredricksen was not quite so exceptionally thorough in his communication with the Italian authorities as Getty had been, but nevertheless the bronze went on display in the J. Paul Getty Museum for the first time in 1978 and was an immediate success.

The murkiness of the bronze’s provenance is evident just by looking at the provenance explanation that the Getty gives in its description of the work: 1964 is listed as the date when the piece was “found”, and then there is a blank hole in the timeline until 1971, when the owner is listed as Heinz Herzer of Artemis Fine Arts Ltd. The discretion and secrecy with which the figure was brought into Italy are to blame for this hole in its story: the fisherman, and the dealer to whom he sold it, deliberately hid its existence from Italian authorities, knowing that to declare it would mean to give it up to the authorities.

In 1989, Italy made its first formal request to the Getty for the return of the bronze. Needless to say, the Getty did not relinquish the rare Greek statue. Faced with the Getty’s refusal, the controversy was brought to the Italian courts, and in 2010 the courts ordered a forfeiture, which the Getty promptly appealed. The forfeiture was upheld in 2012, and once again the Getty appealed. Finally, this year, the court has ruled on this most recent appeal, once again permitting the Italian government to demand the return of the ‘Victorious Youth’.

The legal battle over this one-of-a-kind Greek bronze is a long and complex one. There are multiple legal issues at stake. Firstly, there is the question of whether Italian law is the applicable law in this case. The pertinent Italian statutes (Italian Civil Code Articles 822, 826; 1939 Law No. 1089) establish that any artifact found in Italian territory is the property of the State and must be correspondingly declared to the authorities. The Pre-Trial Judge of the Tribunal of Pesaro concluded that while bronze was likely found outside Italy’s territorial waters, Italian law still applies because the crime in question (illegal exportation) did in fact occur in Italian territory. Furthermore, relying on a previous ruling by the Tribunal of Sciacca, which said that a ship flying the Italian flag was an extension of Italian territory, the court asserted that the fishing net of a fishing boat which was flying the Italian flag was Italian territory as well. There are certainly ways to refute this argument: the bronze was actually found in international, not Italian, waters (and if it had been found by any other nation’s vessel, the issue would be moot); the Sciacca ruling has historically been used sparingly since it could pose a slippery-slope problem for Italy; the bronze was brought out of Italy and to the Getty before the conclusion of the purchase, so based on the lex rei sitae rule, US law could apply as well; and lastly, the judge failed to consider the applicability of any international treaties to this case.

The next primary legal question is whether the 2010 order of forfeiture was lawful, given that it was enacted based on the court’s decision that the statue had indeed been illegally exported from Italy. The Getty objected to it on the grounds that it stemmed from a previously-dismissed and now-expired criminal charge of illegal exportation, but the Italian judge responded that to demand the return of rightful property was lawful regardless of any inciting incident for the demand

Lastly, there is the question of whether the Getty was sufficiently thorough and diligent in its research when Fredericksen acquired the bronze in 1977. The Italian judge determined that even if the Getty had not been aware of the statue’s explicitly illegal past, it had still been extremely negligent when it bought the statue in 1978 without paying heed to the ambiguity in its provenance. The Artemis group did not have a clear title to the bronze, since it was illegally exported from Italy into Brazil before the sale, therefore rendering all subsequent transactions’ titles void, according to the Italian court.

The complexity of the case is even greater when considered in the context of the numerous and intertwining international cultural property laws which have been passed in the past few decades. The first consideration is the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property. Both the US and Italy signed onto the Convention in 1970. The Convention places restrictions on the exportation and importation of artifacts which are deemed national “cultural property” based on either where they were discovered or where they originated. However, the UNESCO Convention is technically inapplicable to this case. Although the US did sign the actual Convention in 1970, it was not implemented into US law until 1983 – 5 years after Getty purchased the bronze. The Convention cannot be retroactively implemented, so it is inapplicable to this case.

The Getty is no stranger to controversies of provenance. In 2007 the museum had to return more than 40 works to Greece and Italy over doubts as to their origins. Italy actually requested the “Victorious Youth” as part of this deal, but both parties agreed to set that particular piece aside until the larger deal was complete. Because of the 2007 debacle, in addition to the controversy surrounding former curator Marion True’s involvement with looted antiquities, the Getty has a particularly strict prospective acquisitions policy. Section 3.1 of the Getty’s acquisition policy mandates that a potential acquisition be documented to have been either in the US by November 17, 1970 (the date of the UNESCO Convention), out of its country of origin by 1970, legally exported out of its country of origin after 1970, or legally imported into the US previously or in the future. But consideration must be given to the fact that these stringent policies were enacted nearly twenty years after the Getty purchased the bronze, so their applicability is not certain. To now start retroactively implementing due diligence statutes would open the floodgates for a plethora of repatriation requests which may or may not be warranted.

The Getty has no intention, even after the Italian court’s most recent ruling, of readily relinquishing its prized statue, as J. Paul Getty spokesman Ron Hartwig said in a recent press release. Hartwig insisted that “accidental discovery by Italian citizens does not make the statue an Italian object”. The Getty insists that the piece was found in international waters, was legally purchased by the museum, and bears not archaeological significance specific to Italy. The Getty stands by its opinion that “the facts in this case do not warrant restitution of the object to Italy”. The importance of the piece to the Getty’s collection is undisputed: besides being referred to as the Getty Bronze, it has been loaned to the Washington DC National Gallery of Art, the Utah Museum of Fine Arts, the Institute for Materials Research and Testing in Berlin, the State Museum of Berlin, and has been a part of multiple exhibitions. The “Victorious Youth” is one of the Getty’s most famous and sought-after works, so the museum’s stubbornness when faced with the Italian court orders is not unwarranted.  How the Getty proceeds is yet to be seen – perhaps they will seek an agreement with Italy, or perhaps they will pursue yet another appeal. Looking back at the museum’s historically persistent grip on what they call a “priceless” artifact, one can only assume that their tenacity will continue.

SOURCES

  1. Vankin, Deborah. “Getty Loses Italian Court Ruling on ‘Victorious Youth’ but Vows to Keep Fighting for Prized Statue.” Los Angeles Times, Los Angeles Times, 12 June 2018, www.latimes.com/entertainment/arts/la-et-cm-getty-victorious-youth-statue-20180612-story.html.
  2. Charney, Noah. “Italian Court Orders California’s Getty Museum Must Give Up Its Beloved Bronze.” Observer, Observer, 14 June 2018, www.observer.com/2018/06/italian-court-orders-getty-museum-must-give-up-its-beloved-bronze/.   
  3. Katz, Brigit. “The Getty Is Fighting to Keep a Rare Greek Bronze.” Smithsonian.com, Smithsonian Institution, 15 June 2018, www.smithsonianmag.com/smart-news/getty-fighting-keep-rare-greek-bronze-180969384/.
  4. Deb, Sopan. “Italian Court Says the Getty’s Prized Ancient Bronze Should Be Seized.” The New York Times, The New York Times, 13 June 2018, www.nytimes.com/2018/06/13/arts/getty-bronze-victorious-youth-italy-court.html.  
  5. Alessandro Chechi, Raphael Contel, Marc-André Renold, “Case Victorious Youth – Italy v. J. Paul Getty Museum,” Platform ArThemis, Art-Law Centre, University of Geneva, https://plone.unige.ch/art-adr/cases-affaires/victorious-youth-2013-italy-v-j-paul-getty-museum.   
  6. Felch, Jason; Frammolino, Ralph. Chasing Aphrodite. HMH, 2011.

About the Author: Claire Dettelbach is a Summer 2018 Intern at the Center for Art Law. She is a rising second-year undergraduate at Carleton College in Minnesota where she is a prospective Art History major. She originally hails from Boston.