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Antiquities Ambiguities: Parsing the Legal Arguments in the Battle of the Getty Bronze

Italian Judge Giacomo Gasparini‘s June 8 decision giving the laurel wreath to Team Italy in the Olympian legal contest over the Getty Bronze seems to me persuasively well-reasoned (although awkwardly worded in the Getty’s 46-page translation).

Americans who (like me) have ogled the Getty Museum’s celebrated nude would be loath to lose one of the world’s few surviving life-size ancient Greek bronzes, let alone one of such outstanding quality. But the Getty has not, to my mind, made a convincing legal case that the statue’s secret removal from Italy, decades ago, was in conformance with that country’s laws. And that matters under U.S. law.

“Victorious Athlete (The Getty Bronze),” Greek, 300-100 B.C.

In a nutshell, the judge for the Court for the Preliminary Investigations, Pesaro, ruled that “two crimes” had been committed after Italian fishermen made their astonishing catch in the Adriatic Sea in 1964. Those crimes, in the judge’s view, fatally compromised the Getty’s title to the celebrated Hellenistic statue of a “Victorious Athlete” (aka “the Getty Bronze”), which it purchased for $3.95 million in 1977.

The two illegal acts were:

—the failure of the fishermen “to report the find to the exportation office to obtain possible authorization for its temporary importation,” which would “serve the purpose of allowing the competent authorities to carry out all necessary verifications on the find to enact…protectionist rules” (which could keep the bronze in Italy).

—the subsequent “illegal exportation and smuggling” of the statue from Italy.

I have never seen the Getty refute the argument that the bronze was secretly removed from Italy in violation of that country’s laws. Our own country’s National Stolen Property Act (summarized here) “allows foreign countries’ cultural patrimony legislation to be effectively enforced within U.S. territory by U.S. courts. These patrimony laws [including Italy’s] generally consider theft to include the unauthorized excavation or removal of artifacts from their archaeological context in the country of origin. Such laws must confer ownership of these antiquities to the country of origin’s government.”

In other words, it doesn’t matter whether those objects would be considered “stolen” under U.S. law. What triggers enforcement under our National Stolen Property Act (NSPA) is that they were stolen under the laws of the country from which they are removed.

As I reported here, Timothy Potts, the Getty’s director since 2012 (and an archaeologist who participated in excavations in Jordan, Iraq and Greece), said this regarding antiquities ambiguities at a May 2006 New York symposium organized by the Association of Art Museum Directors:

You cannot buy anything that is stolen. You cannot buy anything that has been imported in contravention of the restrictions and treaties that the U.S. has with various foreign countries. And the question of what is stolen property often involves the patrimony laws of the source country [emphasis added]. As educational institutions with humanistic and scientific missions, museums see themselves as having ethical responsibilities beyond the requirements of law.

Timothy Potts at the Getty’s press lunch in New York, where the reinstallation of antiquities (including the Getty Bronze) at the Getty Villa was previewed
Photo by Lee Rosenbaum

In the words of Judge Gasparini (whose decision made no mention of the NSPA):

In the present case it was clearly found that the crimes of smuggling and illegal exportation of a cultural object have been committed in Italy; therefore, considering that by way of law the statue became part of the unmarketable cultural patrimony of the Italian State from the moment of its finding, the forfeiture is mandatory.

The Getty has repeatedly tried to weaken Italy’s case by arguing that the bronze was found in international waters. The judge said the evidence suggested it was likely found in Italian waters, but added that, as a practical matter, under Italian law, it doesn’t much matter which side is right. The fishing net, he ruled, was “subject to the same legal regime as the ship…It is deemed Italian territory.”

He added:

Even assuming that the object was found in high sea, once the object was brought aboard the ship it became, in any case, subject to the Italian laws on the protection of cultural objects, and the finders had the duty to report the find to the exportation office to obtain a possible authorization…for its temporary importation (a title certificate having a temporary duration).

In its press release reacting to the judge’s opinion, the Getty also argued that the Getty Bronze “is not part of Italy’s extraordinary cultural heritage. Accidental discovery by Italian citizens does not make the statue an Italian object. [It] has only a fleeting and incidental connection with Italy [emphasis added].”

The judge countered that the cross-cultural relationships between Greece and Italy suggested that the bronze did have compelling “connections with Italy.” The last sentence of the Getty’s own label indicates that Italy was probably the sunken sculpture’s intended destination:

In a longer statement supplementing its press release, the Getty said that Italy “had relied on certain questionable statements by [former Metropolitan Museum director] Thomas Hoving to Italian authorities in 2007.” The Getty has claimed that its founder, J. Paul Getty, had failed to consummate a contemplated joint purchase of the statue with the Metropolitan Museum (then directed by Hoving) only because the oil magnate considered the price to be too high.

But the judge found evidence for Hoving’s publicly expressed claim that Getty was also concerned about getting good title. That evidence included “many deeds and documents acquired during the execution procedure,” including letters by Getty and Hoving and a letter to Jiri Frel, the Getty’s antiquities curator from Heinz Herzer of the Artemis consortium, who ultimately sold the statue to the museum after Getty’s death.

What I’d like to see is a negotiated sharing agreement between the two parties, to put an end to their legal bickering. Through compromise, they might spare themselves yet another round in this battle.

For now, though, the Getty has vowed to appeal the latest decision in this sorry saga.

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