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When “a deal in Palermo isn’t a deal in Palermo”: Getty Trust’s Lawyer on Sicily’s Slippery Promises

Stephen Clark, TK, J. Paul Getty Trust, speaking at museum law conference in Philadelphia

Stephen Clark, general counsel, J. Paul Getty Trust, speaking at museum law conference in Philadelphia (screenshot)

Yet another delay in the resolution of the never-ending legal battle over “Victorious Youth” (aka the Getty Bronze) occurred last week in Italy’s highest court, the Court of Cassation, which had been expected to rule May 8 on whether Italian law required the return of the statue from the J. Paul Getty Museum. As reported by Mike Boehm of the LA Times, a ruling on the case, which had been expected on May 8 has “now been postponed to June 4.”

This had been foretold on Mar. 19 by the J. Paul Getty Trust’s general counsel, Stephen Clark, at a Philadelphia conference (which I attended via webcast) on Legal Issues in Museum Administration, an annual program of the American Law Institute’s Continuing Legal Education group (ALI CLE). Even more interesting than what Clark recounted about the Getty Bronze’s tangled legal history were his candid remarks on the difficulties that the Getty and others have encountered in persuading Sicily’s current leaders to honor deals forged by their predecessors.

But first, here is Clark’s news update on this contested athlete:

“Victorious Youth,” Greek, 300-100 B.C., J. Paul Getty Museum Photo by Lee Rosenbaum

“Victorious Youth,” Greek, 300-100 B.C., J. Paul Getty Museum
Photo by Lee Rosenbaum

“After two years of consideration, Section One of the Court of Cassation decided that they were not the right authority to decide the case and that Section Three ought to handle this,” Clark told the assembled lawyers. “So we’re waiting for a decision from Section Three. They say that they’ll have a decision in May, but I doubt it.” (He was right.)

Then came Clark’s kicker:

It’s not going back to Italy!

In previous comments to me, a Getty spokesperson had asserted that even if an Italian court were to rule against the museum, the bronze could not be seized, because “U.S. law does not support enforcement of an order based on a 40-year-old alleged export violation.” If it comes down to this, we’ll have to see what the seizure-happy feds have to say on the subject.

In a recent NY Times article, Rachel Donadio tracked down what has happened to some of the high-profile objects repatriated from the U.S. to countries of origin, including the celebrated ex-Metropolitan Museum Euphronios krater which, according to Donadio, now “sits rather forlornly in a glass case in the National Etruscan Museum in Rome’s Villa Borghese park.” Donadio also checked in on the ex-Getty Museum “Cult Statue of a Goddess” (once wrongly identified as “Aphrodite”) in its new, somewhat remote home at the archaeological museum in Aidone.

In previous posts, I noted that the Met, in its repatriation exchanges with Italy, did not seem to have gotten what it had bargained for—objects of  “equivalent beauty and importance” to those it had relinquished, in the words of its 2006 written agreement with both Italy’s and Sicily’s Ministries of Culture.

The Met is still waiting for the return (for an agreed-upon four-year stint) of the 16 pieces of Hellenistic silver that it had reluctantly sent back to Sicily in 2010, under the agreement forged by previous director Philippe de Montebello. Last November, Hugh Eakin had reported in the NY Times that the Met’s givebacks were among 23 objects that Sicily had recently decided “should not circulate abroad except under extraordinary circumstances”:

Hellenistic Silver Hoard, including 16 objects that were returned to Italy by the Met Photo by Lee Rosenbaum

Hellenistic Silver Hoard, including 16 objects returned by the Met to Italy
Photo by Lee Rosenbaum

The Met has not given up hope, though: “Under our agreement, the silver is due to come back on loan to the Met this year. We’re in discussions with Italy about this,” the museum’s spokesperson, Elyse Topalian, told me last month. (I”ve asked her for an update and will post it here, if received.) UPDATE: She has now told me that the situation has not changed since we last spoke.

Repatriation frustration gave a sardonic edge to Clark’s Philadelphia fulminations. Here are some key excerpts from his frank remarks:

In 2010 the Getty entered into an agreement with Sicily, a semi-autonomous region that considers itself independent of Italy….You quickly learn that a deal in Rome [my link, not his] is not a deal in Palermo. In fact, sometimes a deal in Palermo is not a deal in Palermo, which has created some problems.

One problem with these agreements is that governments change a lot in these Mediterranean countries. Ministers change. Even laws change. Every time one of these changes takes place, it has an effect on how these agreements to create ongoing relationships are perceived and the eagerness or the reluctance of these countries and the civil servants who serve them to proceed.

Notably, there is a distinct disinclination to perform any aspect of the agreement if they think it reflects well on their predecessors in opposing parties. There is…[an] inclination to believe that a deal with one’s predecessor doesn’t count as a deal, which, from an American legal point of view, is pretty frustrating.

There have been instances, for example, where American museums have agreed to give things back on the condition that they travel back and forth—five years in Country X, five years back in the United States. Sicily, for example, changed its law last year and said, “There is a group of objects that may not leave Sicily and we don’t care if there was an earlier agreement that they would go back and forth. The law now is that they can’t leave, so you’re out of luck if you made that agreement previously.”

It’s those kinds of changes that leave you feeling a little breathless, thinking, “Gee, I thought we had a deal!” We’ve negotiated the terms and we think we understand it and we’re going to go forward with the deal. And for some of our friends around the Mediterranean, it’s just not that way. The deal is a starting point for negotiations.

That can be charming in its way, I suppose!

UNESCO [the UNESCO Convention on cultural property] doesn’t seem to have any meaning to people any more. We keep saying, “1970, right?” But we keep hearing about things that might have come out of a country very early in the 20th century or even in the 19th century. There’s often a problem that some of our colleagues don’t feel particularly bound by legal constraints. So what you get is: “We really think that you ought to give this back.”

Especially if they have leverage, as Turkey did with Penn [my link, not his], for digs and so forth, they can make life very uncomfortable. For that reason, I find local counsel [from the countries of origin] are perplexed about why we would return anything. They say: “This won’t end it. You think you’re going to get peace, but you won’t.”

Then, for a moment, the Getty’s lawyer adopted a diplomatic demeanor:

These agreements aren’t perfect. They don’t necessarily get you where you think you’re going to go. But they’re essential. They’re what we have, and they’re the basis for what we hope will be an ongoing, improving relationship with these countries.

To some extent—with new arrangements for loans, exhibitions, conservation, scholarly cooperation and additional repatriations (like this recent one by the Getty)—this has already happened.

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