Resolving International Disputes Over Cultural Property: The Case of Italy v. J. Paul Getty Museum

Transcription

1 Resolving International Disputes Over Cultural Property: The Case of Italy v. J. Paul Getty Museum A Thesis Submitted to the Faculty of the Department of Arts Administration In Partial Fulfillment of the Requirements for the Degree of Master of Arts Savannah College of Art and Design By Simona Spagnoli Atlanta, Georgia March 2011

2 To my mom, the brightest star in the sky. Rauha Kaarina Mykkänen Spagnoli ( )

3 Acknowledgements: It is a pleasure to thank those who made this thesis possible. First of all, I would like to express my sincere gratitude to my thesis committee: Dr. James Marchant, thesis chair; Professor Jonathan Giuliano, topic advisor, and Professor Karen Shock, editor. I also wish to thank Dr. Alfredo Gaito, one of the defense attorneys of the J. Paul Getty Museum, who has been so kind to grant me an interview in Rome in July My special thanks go to my friend and contemporary artist Pamela Cento for inspiring me to pursue a career in arts administration. Lastly, and most importantly I would like to thank my dear husband Marco Ceccagnoli, my beautiful children Federico, Margherita and Michele, my sister Cristina, and my father Michele Spagnoli for their support and patience. Without their encouragement and understanding this thesis would not have been possible.

4 Table of Contents Abstract..1 Chapter 1: Introduction, Problem Statement and Research Questions 1.1 Introduction Problem Statement and Research Questions.. 3 Chapter 2: Literature Review 2.1 Cultural Property Nationalism and Internationalism Cultural Property Regulation Brief Historical Overview Domestic and International Situation International Organizations and Conventions UNESCO UNIDROIT U.S. Approach on Cultural Property Repatriation of Cultural Property Recent Repatriation Problems Chapter Summary...28 Chapter 3: Research Methodology 3.1 The Ethnographic Case Study Approach Case Study Design Qualitative Data Collection Interviews Archival Records Documentation Quantitative Data Collection Data Analysis Validity Scope and Limitations of the Study Chapter Summary 45 Chapter 4: The Italy v. J. Paul Getty Museum Case 4.1 History of the Case...48

5 4.2 Domestic Jurisdiction and Legislation Good Faith Bona Fide Ownership through Possession-Usucapio Negligence - Negligencia Seizure - Confiscatio Legal Interest Locus Standi Legal v. Cultural Owner Recent Development and Probable Outcome of the Case Diplomatic Negotiation Economic Bargaining Power Chapter Summary..71 Chapter 5: Findings, Alternatives, and Implication 5.1 Research Findings Alternatives to Repatriation Loans Reproduction of the Cultural Property Mutual Agreement Promotion of the Source Nation Financial Reimbursement Implications for Arts Administrators Study Conclusion.91 Works Cited 94 Appendices Appendix A: Interview Script with Prof. Gaito Appendix B: Illustrations Appendix B.1: The Getty Bronze Appendix B.2: The Getty Villa 114 Appendix C: Supplementary Documents Appendix C.1: The Getty Museum 2007 Statements of Activities.116 Appendix C.2: The Getty Museum 2008 Statements of Activities Appendix C.3: The Getty Museum 2009 Statements of Activities.118

6 Spagnoli/1 Abstract Resolving International Disputes Over Cultural Property: The Case of Italy v. J. Paul Getty Museum Simona Spagnoli March 2011 The main objective of this study is to analyze how the system of cultural property is regulated internationally. With an ethnographic case study the author analyzes the most famous and ongoing art case on cultural property between Italy and the United States, the Italy v. J. Paul Getty Museum. At the center of this legal battle is the Victorious Youth statue, better known as the Getty bronze, attributed to the Greek sculptor Lysippus. It was found off the coast of Italy in 1964, illegally exported, and bought by the Getty Museum in This study highlights the complexity of cultural property and the uncertainties in the legal systems which impede efficient and fair conclusions of international litigations. The author begins with an overview of the Italy v. J. Paul Getty Museum case and then moves to a detailed analysis of the motivations of the last ruling of the Court of Pesaro of February 2010, which ordered the seizure of the statue and the return to Italy, with the motivations of the Getty defenders. Finally, the author provides a discussion of the potential outcome of the case which may affect other pending or future litigations involving prestigious museums. This analysis focuses on broad questions such as how the regime of cultural property is regulated between different countries and more narrow questions related to the Lysippus case, such as why Italy has an interest on the statue and why the cultural ownership does not always coincide with the legal ownership. Results from this study point out that the return of popular artifacts should not be regulated by domestic courts. The latter, in fact, focus their attention primarily on the legal and not on the cultural aspect of the ownership. In the Italy v. J. Paul Getty Museum, the Italian Supreme Court (Corte di Cassazione) will decide if Italy or the US is the legal owner, without considering the real cultural owner of the statue which is Greece. The impossibility to apply the UNESCO Convention of 1970 for retroactivity issues also demonstrates the gap in the legal system and the need of more efficient international regulations. The study finally stresses how sometimes international legal cases are likely to be solved through political and diplomatic negotiations, with the outcome determined, as for any negotiation, by the relative bargaining power of the negotiating actors.

7 CHAPTER 1 Introduction and Statement of the Research Questions 1.1 Introduction The requests for restitution of cultural property to the countries of origin have been recently increasing. The circumstances of the various cases vary significantly because most often the artifacts were illicitly exported, wartime looted, appropriated or traded between dealers in time of colonization or occupation (Cornu and Renold 1). Countries of origin, which are most of the time poorer than the countries where the artifacts are displayed, request the restitution, return, and repatriation of cultural property by claiming ownership of it. Many cases of restitution of cultural property involve entities other than states, such as other public and private law entities, regional or territorial government authorities, and even museums (Cornu and Renold 4). Indeed, some recent claims for restitution of cultural property were concluded by museums, while other claims involved local districts or even private individuals (Cornu and Renold 5). This growing number of organizations involved in the process of return of cultural property complicates even more the current situation and raises the question of which organization is able to rule on this important matter. Sometimes these disputes are solved rapidly and without involving state governments, as in the case of the Teotihuacan Murals between Mexico and the Fine Arts Museums of San Francisco, USA. At other times disputes are adjudicated in domestic courts, which results in endless and expensive legal battles, as in the Italy v. the Getty Museum case. Therefore, the purpose of this thesis is to illustrate through an ethnographic case study how international disputes over cultural property are resolved;

8 Spagnoli/3 to offer alternatives to repatriation, which is considered anachronistic in a global era and antagonistic to cultural property internationalism; and finally to analyze implications of these disputes for arts administrators. Through document analysis, record archival, and interviews this study aims to show that when domestic courts get involved, legal battles over cultural property are very expensive, time consuming, and a waste of time. If cultural property is considered as a value for all humankind, then it is not important where the artifacts are located, but which country is able to protect their integrity while promoting them in the best way possible. 1.2 Problem Statement and Research Questions The requests for returning artifacts directly involve arts administrators of the most prestigious American and European museums who sometimes manage artworks with often questionable origins. Through a detailed analysis of the most famous and contentious case concerning cultural property between Italy and the United States, Italy v. the Getty Museum, this study aims to understand how the cultural property system is regulated internationally. This complex legal case is extremely important because it clearly highlights how the cultural property system currently (mal)functions, and it helps in identifying strategies for more reasonable and fair solutions to similar and future disputes over cultural property. The problem begins when the jurisdiction of international legal battles over cultural ownership is left to the domestic courts, which rule following their national laws. As a result, these tribunals are biased and proclaim unfair decisions because they focus primarily on the legal aspect of the ownership to the exclusion of the cultural aspect. Also, the trials are long, complex, and very expensive. They affect the economy

9 Spagnoli/4 and the reputation of the most renowned international museums and their arts administrators. Sometimes, the disputes are solved through political and diplomatic negotiations rather than legal means, with the outcome determined by the relative bargaining power of the most economically powerful negotiating actor. The analysis of the ongoing and unsolved Italy v. the Getty Museum case provides a comprehensive body of evidence for the need of more competent international law on cultural property and other solutions that do not necessarily force the restitution of the artworks to their countries of origin but allow for other possible resolutions to disputes over rightful ownership. The peculiarity of this case is the involvement of two countries with different legislation and different economic bargaining powers (Italy and the US). Despite the fact that the statue is today displayed at the Getty Villa in Malibu, it is the domestic Court of Pesaro (Italy) that is ruling on this case. By following the Italian criminal and civil laws, the Supreme Court of Pesaro will decide on the ownership of the statue, focusing on its legal aspect and forgetting the cultural specificity (the statue is culturally Greek) that, as Barbara Hoffman declares, does not automatically follow (68). The United Nations Educational, Scientific and Cultural Organization (UNESCO), which is the institution that deals with cultural property, should solve issues of the inapplicability of the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property retroactively. As it happens in this case, the Getty Museum bought the statue before the US signed the convention, so the convention does not apply. Moreover, the UNESCO

10 Spagnoli/5 should invite all countries to sign this convention limiting the use of domestic courts and the application of specific bilateral treaties which favor the most influential countries. With the objective of providing a discussion of the potential outcome of Italy v. the Getty Museum case in order to allow efficient and fair conclusions to similar future international art disputes, the proposed study will answer these specific questions: 1. How is the regime of cultural property regulated between different countries? a. How does it change at different legal levels (domestic law, private international law, international treaty law)? b. Which organizations are involved in cultural property protection? c. What are the most important conventions regarding cultural property? d. How can bilateral treaties play a role in solving international art cases? e. What is the approach of the US to cultural property regulation? 2. How can the Italy v. the Getty Museum case affect several other pending or future legal cases on cultural property? a. Why does Italy have a cultural interest in a Greek statue? b. What role does the economic interest play in this case? c. Which country is the cultural owner of the Lysippus statue? The US, Italy, or Greece? 3. What role does the economic bargaining power of the richest countries have on diplomatic negotiations?

11 Spagnoli/6 4. How can arts administrators avoid expensive and long legal arts cases and promote the patrimony and culture of other countries without restituting their cultural objects? This study is divided into five chapters. After this introductory chapter, the second chapter contains the literature review which mainly focuses on the theories of international approach on cultural property regulation. The third chapter describes the research methodology and the types of evidence used in this investigation It also includes the validity, the scope, and limitations of the study. The fourth chapter describes and analyzes in detail the ongoing and unsolved legal case between Italy and the Getty Museum, the Italy v. the J. Paul Getty Museum case. The last chapter explains the finding of this research study and suggests strategic recommendations to arts administrators for solving future disputes on cultural property restitution.

12 CHAPTER 2 Literature Review For centuries, the international art market functioned without any legal or ethical restriction. As a result, many valuable artworks were stolen, illicitly exported from their place of origin, and sometimes even destroyed. The richest countries, especially the United States of America, for ages easily imported cultural treasures from the poorest countries because there was no regulation. Even when cultural antiquities were legally removed from their countries of origin, remarkable controversy resulted. Indeed, depending on the position national authorities take on the specific case, the regime of cultural property may differ at various levels when applying the domestic law, the private international law, or the international treaty law. This literature review provides support for the subsequent case study, the art case Italy v. J. Paul Getty Museum analyzed later in Chapter 4. In particular, this review overviews the issues of cultural property nationalism and internationalism, and the current regulation. In what follows I first analyze the question of cultural property in general and then the domestic and international regulations. I analyze the most important organizations and conventions with their limitations for applicability, and the US approach to cultural property regulation. At the end I introduce the issues of repatriation of cultural property by analyzing two famous international legal cases Cultural Property Nationalism and Internationalism What is cultural property? Can any human artifact qualify? The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict

13 Spagnoli/8 defines cultural property as the cultural heritage of all mankind (Preamble). However, the UNESCO Convention of 1970 includes anything and everything and treats the category as a collective unit. In fact, the convention considers cultural property as property which, on religious or secular grounds, is specifically designed by each state as being of importance for archeology, prehistory, history, literature, art, or science (art.1). On the other hand, the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects applies to objects which, on religious or secular grounds, are of importance for archeology, prehistory, literature, art or science and belong to one of the categories in the Annex to this Convention (art. 2). A somewhat different view has John Henry Merryman in his article Cultural Property Internationalism. Merryman declares that empirically, cultural property centrally includes the sorts of things that dealers deal in, collectors collect, and museums acquire and display: principally works of art, antiquities, and ethnographic objects (12). On the other side, he also explains that cultural property internationalism is shorthand for the proposition that everyone has an interest in the preservation and enjoyment of cultural property, wherever it is situated, from whatever cultural or geographic source it derives (11). In the same article he also describes the historical development of the idea of cultural property, contrasting cultural internationalism and cultural nationalism. He argues that the cultural property world is international. In fact, Museums in London and Berlin have extensive collections of African and American objects. Japanese dealers attend New York and London auctions to bid on works of French Impressionists and German expressionists. American collectors build important art and antiquity collections of works from Europe, Africa, East and South Asia, the Middle East, and Latin America.

14 Spagnoli/9 Basically, he says that cultural property internationalism is not an argument or a hypothesis: it is an observable fact (12). However, regulation is necessary to protect cultural property and to support its proper circulation, but not too excessive, otherwise it thwarts the international interest (12). The cultural property regulation is complex because not all the nations agree on whether a restriction is necessary or perhaps too extreme. 2.2 Cultural Property Regulation Brief Historical Overview The protection of cultural property started when people realized that it needed to be protected from destruction and plunder in war. Merryman analyzes the origin of cultural property and the international law that regulates it. He writes that already at the time of Polybius of Athens, before 146 BC, we find the first suggestions to conquerors not to plunder the cities subjugated by them, and not to make the misfortunes of the peoples the adornments of their countries (13). However, the Romans were famous for adorning the Forum with all the treasures from the cultures conquered as trophies of war and manifestation of their power. The same style was also revived by the Venetians and the other Italian powers during the Crusades and the Renaissance. Very important were the words of Grotius, who in the seventeenth century asked that sacred or artistic works should not be destroyed where there is no military advantage in doing so (14). Merryman finds two centuries later the earliest expression of cultural property in the words of Vattel, who argues that cultural property should be spared in the interests of mankind and human society, and he broadens the basis for protection to include also works of remarkable beauty. It is the first time that there was a distinction between

15 Spagnoli/10 necessity and simple convenience. During the Italian Campaign in , Napoleon plundered Italian art and displayed it in French museums. The reaction from French intellectuals against this plunder was huge. A letter from Quatremère de Quincy addressed to one of Napoleon s generals contained the following important passage: In Europe the arts and sciences form a republic whose members, joined by the love of and quest for truth and beauty, tend less to isolate themselves in their respective nations than to pursue their interests from the point of view of a universal fraternity.... [T]he arts and sciences belong to all of Europe and are no longer the exclusive property of any nation....[i]t is as a member of that general republic of arts and sciences, and not as an inhabitant of this or that nation, that I will discuss the interest that all parties have in the conservation of all. What is that interest? It is that of civilization, of perfection of the means of welfare and pleasure, of the advancement and progress of education and thought, of amelioration of the human condition. Everything that could contribute to this end belongs to all peoples; no one has the right to dispose arbitrarily of it. (88-89) Quatremère de Quincy s statement influenced other cases, especially the decision of an English judge in a very interesting case that happened in This was the first time that a work of art was treated as cultural property excepted from ordinary rules of the law of war, and the opinion provides a rare and eloquent judicial statement of cultural property internationalism (Merryman, 16). Even later this statement raised questions of the protection of art and science during the wars especially in Europe and at the end of the eighteenth century. During the American Civil War, Francis Lieber, a professor at Columbia College, prepared a code of conduct for the Union forces, the socalled Lieber Code. This code contained 157 articles, and the protection of cultural property appears in articles 34-36: As a general rule, the property belonging to churches, to hospitals, or other establishments of an exclusively charitable character, to establishments of education, or foundations for the promotion of knowledge, whether public schools, universities, academies of learning or observatories, museums of the

16 Spagnoli/11 fine arts, or of a scientific character such property is not to be considered public property in the sense of paragraph 31 [authorizing seizure of enemy public property]; but it may be taxed or used when the public service may require it. (34) Classical works of art, libraries, scientific collections, or precious instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded. (35) If such works of art, libraries, collections, or instruments belonging to a hostile nation or government, can be removed without injury, the ruler of the conquering state or nation may order them to be seized and removed for the benefit of the said nation. The ultimate ownership is to be settled by the ensuing treaty of peace. (36) The Lieber Code was very important because it influenced forthcoming articles of the Declaration of Brussels (1874), the Manual of the Laws and Customs of War (1880), the Convention Concerning Bombardment by Naval Forces in Time of War, Hague Rules of AirWarfare (1922), and other international instruments. In 1935, just before World War II, the Organization of American States met in Washington, DC, and wrote the Roerich Pact. This was the first multinational convention entirely devoted to the protection of cultural property in war (18). Most of the North and South American states, including the US, signed the Pact which stated in article 1, The historic monuments, museums, scientific, artistic, educational and cultural institutions shall be considered as neutral and as such respected and protected by belligerents. The same respect and protection shall be due to the personnel of the institutions mentioned above. The same respect and protection shall be accorded to the historic monuments, museums, scientific, artistic, educational and cultural institutions in time of peace as well as in war. During World War II the German Nazis, directed by the official Alfred Rosenberg, seized the property of Jews and an enormous quantity of art that was shipped

17 Spagnoli/12 to Germany. However, in 1945 the Allied Military Tribunal in Nuremberg charged Rosenberg with multiple crimes against peace, war and crimes, and crimes against humanity... and looting and plundering of works of art (189). In addition, in 1954, 56 members adopted the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. This new convention, never signed by the US, contains a very important statement of cultural property internationalism in the introduction: damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world. Merryman argues that the Gulf War and the wars in the former Yugoslavia in the 1990s aroused concern for the adequacy of the Hague Convention. For this reason, in 1999 states adopted the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict. For the first time a Secretariat was established to administer the Convention s terms. The US ratified the Hague Convention of 1954 in March It is also one of the forty-four states members of UNESCO, an organization established in 1945 in London Domestic and International Situation Nowadays the regulation of cultural property objects is extremely complicated, especially when there is a conflict that involves two different countries. Barbara Hoffman, in Art and Cultural Heritage, first questions if works of art are different from the ordinary objects. This question is extremely important because there are states that consider works of art as simple objects and therefore favor their circulation, while others, instead tend to protect them (68). As a consequence of this disagreement, it is extremely important, in case of a legal battle between different countries, which country

18 Spagnoli/13 gets the jurisdiction on the case and therefore applies its national law and influences the result of the judgment in its favor. Hoffman explains that for private international issues, states usually rely on their rules concerning conflict of laws. Therefore, under private international law artworks are subject to the same law as any ordinary object. However, Hoffman argues that if states wish to depart from this state of affairs and ensure internationally a (certain degree of) legal specificity to such objects, they may do so, either jointly by elaborating and/or adhering to an international Convention (70). Though an international convention cannot be applied, it is the domestic law that rules on international cases, and therefore it supports the nation s interest. Barbara Hoffmann illustrates three technical possibilities that exist in an international situation. The first one occurs if there is a conflict of laws for specific works of art and cultural property. To deal with this category, the lex originis was adopted by the Institute of International Law at the 1991 Basel Resolution. In this case the forum does not predict the normative content of such law and the outcome of the dispute, but ensures that the law of the most culturally concerned state applies (70). A second possibility consists in elaborating a substantive unilateral rule which would apply within its scope to any international case (70). However, Hoffman argues that the applicability of such a unilateral rule becomes obviously uncertain if a foreign court has jurisdiction on the case. A third and different situation is that of a legal system qualifying a cultural property as res extra commercium (not susceptible to be traded). Hoffman argues that this status of inalienability and imprescriptibility, which is very protected under domestic law, as long as the object is on the territory, is generally not recognized per se internationally if the object is imported in a different legal system

19 Spagnoli/14 (70). These three possibilities show that the regime of cultural property may differ at various levels when applying domestic law, private international law, or international treaty law, and therefore lead to three completely different outcomes. 2.3 International Organizations and Conventions on Cultural Property Protection UNESCO Fitz Gibbon, in her book Who Owns the Past?, explains that in 1945, the United Nations Educational, Scientific, and Cultural Organization (UNESCO) was first convened (5). Article 1 of the UNESCO Constitution states the organization s cultural property competence: 1) conservation; 2) protection; 3) support of international conventions; and 4) encouragement of international exchange. Merryman explains that the first item is a logic expansion of the protection of cultural property during war: whether in war or at peace, cultural property should be preserved against damage or destruction (21). The author criticizes the lack of other necessary competences that UNESCO should be involved with, such as preservation, the quest for knowledge, and access to the public for education and enjoyment. In 1970, UNESCO crafted the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, and in 1972 the Convention Concerning the Protection of the World Cultural and Natural Heritage. With one hundred signatory nations, the UNESCO convention is still the most important international instrument dealing with cultural property (Fitz Gibbon, 5). The United States and Italy are two of more than 115 states which signed the 1970 UNESCO Convention. The convention provides that the state parties (signatories to the convention) prohibit the import of property stolen from a museum or religious or

20 Spagnoli/15 secular monument, and take steps to recover the property if so requested by another state party. In addition, the Convention clearly defines what cultural property is and the categories that determine whether a particular property is part of the cultural heritage of a state: (a) Cultural property created by the individual or collective genius of nationals of the State concerned, and cultural property of importance to the State concerned created within the territory of that State by foreign nationals or stateless persons resident within such territory; (b) cultural property found within the national territory; (c) cultural property acquired by archaeological, ethnological or natural science missions, with the consent of the competent authorities of the country of origin of such property; (d) cultural property which has been the subject of a freely agreed exchange; (e) cultural property received as a gift or purchased legally with the consent of the competent authorities of the country of origin of such property. (art.4) The convention also encourages the international interchange of cultural property, as stated in the Preamble: The interchange of cultural property among nations for scientific, cultural and educational purposes increases the knowledge of the civilization of Man, enriches the cultural life of all peoples and inspires mutual respect and appreciation among nations. However, the UNESCO Convention of 1970 tries to promote only the international licit exchanges. If the exports are considered illicit, then they need to be prevented and denied. Merryman argues that the UNESCO Convention does not support cultural property internationalism but instead supports a strong form of cultural property nationalism. He states that it does not impose any discipline on a state to define the cultural property that may not be exported without permission. It leaves instead States free to make their own self-interested decisions about whether or not to grant or deny export permission in specific cases (Merryman, 22). Basically it leaves the decision to the domestic law, which is biased.

21 Spagnoli/16 Moreover, in 1976 the UNESCO introduced recommendations to encourage cultural property exchanges and to regulate such transactions in the 1976 Recommendation Concerning the International Exchange of Cultural Property. Merryman argues that this addition opposes international trade instead of supporting it. The international circulation of cultural property is still largely dependent on the activities of self-seeking parties and so tends to lead to speculation which causes the price of such property to rise, making it inaccessible to poorer countries and institutions while at the same time encouraging the spread of illicit trading. (23) The author is afraid that the poorest countries that are also the source nations may take advantage of their surplus cultural objects and sell their treasures on the black market, receiving in exchange a significant amount of income from the buyers. Even in the Preamble of the Recommendation this exchange is encouraged: Many cultural institutions, whatever their financial resources, possess several identical or similar specimens of cultural objects of indisputable quality and origin which are amply documented, and... some of these items, which are of only minor or secondary importance for these institutions because of their plurality, would be welcomed as valuable accessions by institutions in other countries. Merryman criticizes the Recommendation because in his opinion it discourages the interchange of cultural property, leaving the transactions exclusively government to government and museum to museum. In this way it excludes the private collectors and dealers, which support the artists by promoting their works. He believes that the market is a much more efficient and productive mechanism for the international circulation of cultural property (23). In 2001 UNESCO prepared the Convention on Protection of the Underwater Cultural Heritage. This convention defines the underwater cultural heritage as all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or

22 Spagnoli/17 continuously, for at least 100 years such as: (i) sites, structures, buildings, artifacts and human remains, together with their archaeological and natural context; (ii) vessels, aircraft, other vehicles or any part thereof, their cargo or other contents, together with their archaeological and natural context; and (iii) objects of prehistoric character. The convention also states, Underwater cultural heritage shall not be commercially exploited (Art. 2), and in the Rules concerning the activities directed at underwater cultural heritage annexed to the convention, Underwater cultural heritage shall not be traded, sold, bought or bartered as commercial goods. Only Panama and Bulgaria have ratified the convention which therefore did not enter into force (Merryman 25). For the author, the lack of consensus among the other nations may demonstrate a reaction to the severity of the conventions that prohibit the exchange or maybe the wish to retain control over their territorial waters. The consequence of this recommendation is that cultural property transactions risk disappearing, leaving the market only to governments and institutions. Everybody agrees that there is a strong need of regulation in order to preserve cultural property and to support international art exchange. However, for Merryman excessive regulation violates rather than serves the international interest and a prohibition against clearly is excessive (29). The author emphasizes that everybody shares an interest in the preservation, study, and enjoyment of cultural property. Therefore, he criticizes the fact that the source nations and archeologists, supported by the UNESCO, have their particular selfinterests, which are in principle legitimate in protecting and returning cultural property (Merryman 32). However, he argues that there should be a better dialog between source nations, archeologists and museums, art traders, and collectors. He says that if one sets

23 Spagnoli/18 out to design a system that would discourage a licit market and encourage a black market, it would be difficult to improve on the present one (32). Source nations supported by UNESCO opt for nationalism because they consider themselves owners of the particular artwork in conflict with the trade liberalization treaties. He is afraid that we will reach a situation where all the regulations will have the opposite result: instead of protecting cultural property, they will increase the black market and reinforce cultural property nationalism. In the same article, Merryman also explains that collectors and art traders generally respect legal restraints on cultural trade in cultural objects by adopting codes of ethics for dealers (27). He mentions the Art Dealers Association of America, for example, that agrees to observe the CINOA guidelines (Confédération Internationale des Négociants en Oeuvres d'art). In 1999 UNESCO adopted a Code of Ethics for Dealers in Cultural Property that was drafted with the assistance of dealers. The content of this code is very reasonable and constructive. It offers important principles to regulate the conduct of the dealers. However, for the author this content is in conflict with the restraints of the source-nation trade that is also supported by the UNESCO Convention of There is therefore a situation of conflict between the source nations and the archeologists that opt for cultural property nationalism because the source nations consider themselves the owners of the items, whereas the collectors, dealers, and museums push for cultural ownership internationalism. On top of all this, there is UNESCO, which, for Merryman, is excessively protective, and instead of supporting international circulation supports nationalism.

24 Spagnoli/ UNIDROIT The most recent and sophisticated multilateral treaty on restitution is the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. This convention, drawn by the International Institute for the Unification of Private Law (UNIDROIT), applies to claims of an international character for the restitution of stolen cultural objects, and the return of cultural objects removed from the territory of a contracting state contrary to its law regulating the export of cultural objects for the purpose of protecting its cultural heritage (art.1). It also defines what are considered cultural objects: Cultural objects are those which, on religious or secular grounds, are of importance for archaeology, prehistory, history, literature, art or science and belong to one of the categories listed in the Annex to this Convention (art.2). The focus on this convention is limited in this paper because while Italy signed the international UNIDROIT act in 1995, the US has not signed it yet, and therefore it is not relevant to the case study analyzed in Chapter US Approach to Cultural Property Jeanette Greenfield, in her book The Return of Cultural Treasures, argues that for many years the United States did not adopt any policy on the import and export of cultural treasures, and was reputed to be the largest buyers market in the world for stolen or illegally exported cultural property, much of it coming from south of the US- Mexican border and often ending up in respectable museums (157). In 1965 the American Association of Museums made public that between 1960 and 1963 a new museum was set up every three to four days. In the 1980s there were more than 21 museums for every million of the population (194 million for the US and Canada).

25 Spagnoli/20 Cultural objects were able to leave and enter without restriction and were free of duty. However, from 1971 forward, the situation began to change: the US among the most responsive nations has been regulating cultural property. In the 1970s art museums and organizations adopted regulations and returned illegally exported and stolen artworks to their country of origin. An important resolution is the one that the Council of the Archaeological Institute of America adopted in 1970 to prevent illicit trafficking as defined in the then proposed UNESCO Convention on cultural property: The AIA calls upon its members, as well as educational institutions (universities and museums) in the United States and Canada, to refrain from purchasing and accepting donations of antiquities exported from their countries of origin in contravention of the terms of the UNESCO Draft Convention.... The Archeological Institute of America applauds the effort of local authorities, both in the United States and abroad, to prevent the despoliation of archeological materials, and pledges its support in such efforts. (AIA) However, in 1971 the Council of the American Association of Museums adopted a very different resolution that still allowed the continued legal flow of antiquities: We urge individual and institutional members of the AAM to abstain from purchasing and accepting donations of antiquities exported from their countries of origins in contravention to the terms of the UNESCO Draft Convention. This abstention is to apply only to antiquities from a country which has adopted the farsighted policy of making duplicate material available through legal channels, or has installed a procedure for granting export licenses to material which has been approved by a board of review. We feel that this policy... is the most effective method of achieving the objective of safeguarding archeological sites and preserving national art treasures (AIA). Greenfield explains that in this way the US supported the UNESCO Convention only partially by inserting a condition that there should be a supply of duplicate material (159). The reason for that was that the market for Mexican objects has flourished in the

26 Spagnoli/21 US. Too many looters rob the Mayan and Aztec archeological sites and import the pieces into very famous museums. Although the US participated in the crafting of the 1920 UNESCO Convention, it signed the convention only in 1972, and did so with reservations that are reflected in the 1983 US implementing legislation. Indeed, in 1982 the US approved the Convention on Cultural Property Implementation Act (Cultural Property Law) to implement the 1970 UNESCO Convention. The US State Department s position was that while the US would not agree to a comprehensive system of import controls applicable to all cultural property, it recognized that it is in the national interest of the US to help preserve the record of past civilizations. Section 303 is the one which deals in particular with cultural property. It states that the US President may respond to a request of a state party, which is any state that ratified the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property by agreeing to impose import restrictions on specified archeological or ethnological material. Section 303 states that the executive must first determine the following: (1) That the cultural patrimony of the State Party is in jeopardy from the pillage of archaeological or ethnological materials of the State Party; (2) that the state party has taken measures consistent with the UNESCO Convention to protect its cultural patrimony; (3) that the imposition of the import restrictions if applied in concert with similar restrictions implemented, or to be implemented within a reasonable period of time, by those nations (whether or not State Parties) individually having a significant import trade in such material, would be of substantial benefit in deterring a serious situation f pillage ; (4) that remedies less drastic than the application of the restrictions are not available; and (5) that the application of the restrictions is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes. (Greenfield 172)

27 Spagnoli/22 In addition to these conditions, under the Cultural Property Law, there is a provision that declares that the law does not apply if articles have been in the United States for a minimum of ten consecutive years and if they were on public display for at least five of those years, or if notice of their location has been received or should have been received by a foreign nation during the time (CCPIA Section 312 (c). Since private international law solutions do not necessarily ensure the return of cultural property stolen and/or illicitly exported, the increase of illicit traffic in cultural property and the need of international regulations pushed the international community to initiate multilateral negotiations specific to such works of art. In 1970, in fact, the US legislation independent of international conventions began with the US-Mexican Treaty for the Recovery and Return of Stolen Archeological Historical and Cultural Property which provided for the return of stolen items of outstanding importance to the national patrimony, and the 1972 Regulation of Importance of Pre-Columbian Monumental or Architectural Sculpture or Murals, which prohibited the import of pre-columbian architectural monuments and sculpture into the US (Fitz Gibbon 6). These were important steps because they provided the first return of stolen artworks. Subsequently, the United States made similar arrangements with Ecuador in 1983 and Guatemala in 1984, and in 2001 the government of the United States of America and the government of the Republic of Italy signed The U.S.-Italy Memorandum of Understanding: Provisions for Long-term Loans to protect pre-classical, Classical and Imperial Roman archaeological material.

28 Spagnoli/ Repatriation of Cultural Property Merryman and Else argue in their book Law, Ethics, and the Visual that there are four approaches for repatriation. The first one is to deal through self-help, when there is no convenient legal remedy (for example, the case of the patriotic Mexican who stole a rare Aztec codex from the Bibliothèque Nationale of Paris and repatriated it to Mexico). The authors define this repatriation method as the antithesis of law (124). The second approach is through purchase, but they say that many of the most important objects are in the permanent collection and are not for sale. The third and most used approach is through a bilateral transaction between two parties: officials of the returning institution or nation, on one side, and the responsible parties in the nation of origin, on the other (124). However, it is very interesting that they say that some returns may conceivably, if improbably, be altruistically motivated solely by sympathy with the state of cultural deprivation of the nation of origin. Another approach is through deals, which for the authors might be subjected to the bargaining power of the most economic powerful country. The authors list a few examples of requests in exchange for the repatriation: permission to install a military base, assistance in controlling narcotics, help in extraditing a wanted criminal. 2.6 Recent Repatriations Problems Merryman and Else illustrate two famous cases of repatriation. The first one, the Teotihuacan Murals, was a case resolved by cooperation between museum directors, curators and conservators. The second, the Elgin Marbles, on the contrary, became very well-known because it got the press attention. These two cases are very important to understanding the Italy v. J. Paul Getty Museum case described in Chapter 4.

29 Spagnoli/24 The first case involves more than seventy fragments of a mural from the famous Aztec site of Teotihuacán outside Mexico City. When the architect Harold Wagner died in 1976, he left the mural to the Young Memorial Museum in San Francisco, which was pleased and worried at the same time. Under the national Mexican law the murals were the property of the state and only an export license would have had to be obtained to remove them from Mexico (Merryman and Elsen, 131). However, nobody was able to show a license. Moreover, the treaty between the US and Mexico of 1971 suggested the return of stolen archeological, historical, and cultural property. Therefore, the government of Mexico requested the attorney general of the US to return the murals. However, under California law the removal was denied. Basically under the US law the museum owned them, while under the Mexican law, the Mexicans owned them. Also, Mexico claimed that the murals were of cultural significance to them (131). In addition to that, the Californian museum does not specialize in Mexican or pre- Colombian art, so it was better to send the murals back to their country of origin. This case is important because both parties were able to set aside the issue of ownership. Thomas K. Seligman, deputy director of the exhibits and education of fine arts museums noted: Sometimes we can lock horns about something that will never be solved. If we tried to force ownership, we would never have gotten anywhere because our law says we own it and their law says they own it (132). Fortunately the two countries were able to negotiate a joint custody arrangement. Representatives of the Fine Arts Museums of San Francisco met with representatives of Mexico s National Institute of Anthropology and History, which is responsible for the care of national monuments, and arrived at this decision after three years of negotiations. Merryman and Else agree that even if

30 Spagnoli/25 participants attributed the success of the project to the political process, the people involved were actually museum professionals. They affirm that the results might have been quite different, and possibly less satisfactory, if the Mexican government had done the negotiating (134). The second case Merryman and Else discuss involves the return of the Elgin Marbles to Athens from the British Museum. The Greek Minister of Culture Melina Mercouri said, The British say they saved the Marbles. Well, thank you very much. Now give them back (134). Today the Greek government has announced a formal request for the return of the marbles, while the British Committee for the Restitution of the Parthenon Marbles has been working since 1982 to discuss the big question: Should the marbles be returned to Greece? The Greek arguments in support of the restitution are mainly two. The first one is that Greece claims that these marbles were conceived and built as an integral part of the Parthenon and therefore raises the argument of integrity. The second argument relates to the concept of cultural property that sometimes overrides that of juridical property (135). Cultural property has been defined by the director general of UNESCO as a people s irreplaceable cultural heritage, the most representative works of a culture, which the dispossessed regard as of highest importance and the absence of which is psychologically most intolerable. (135) Moreover, the intergovernmental committee for promoting the return or restitution of cultural property speaks of objects charged with cultural significance, the loss of which deprives a culture of one of its dimensions. Everybody agrees that the Parthenon is the most important symbol of Greece and of the cultural identity of the Greek people.

31 Spagnoli/26 On the other hand, the British Museum argues, Why take the marbles from one museum only to put them in another? It would be a different matter if they could be replaced on the building (136). The Greek government intends to build a museum at the foot of the Acropolis so the sculptures can be better understood in close proximity to their original state. The British Museum also argued that the atmospheric pollution in Athens is another argument to avoid the repatriation of the sculptures. The Greeks replied that if this is the reason for blocking the repatriation, then the marbles can be returned when the pollution in Athens is reduced to an acceptable level (136). Another argument of the British Museum is that the marbles are more accessible in London than in Athens. To this the Greeks replied that it is just an excuse because the museum is actually afraid that if the marbles go, the museum will be empty since other countries are in the process of asking for the repatriation of their artworks. It is true that the marbles have been admired at the British Museum, bringing admiration and respect to Greece. Merryman and Else asked themselves: Has the Greek cultural heritage not been preserved, arguably enhanced, by the British acquisition and display of the marbles? (136). They also wonder if reproductions of the statue could be a solution for the Greeks and for the British Museum. This problem introduces the aspect of possession that is connected to economics. From this point of view, the authors agree that the marbles have value. In fact, if they were on sale they would have an enormous price. Furthermore, they are a great attraction that brings many tourists to the British Museum. Therefore, the possession of the sculptures has great value. The law seems to support the British acquisition, and therefore the economic value for the British. Is this completely right? Should the Greeks also have something in exchange?

32 Spagnoli/27 Another argument is that everybody always talks about the Greek cultural heritage of the marbles without considering that they have been displayed in the British Museum for more than 150 years. In this sense, they have also become part of the British cultural heritage. The Hague Convention of 1954 talks about cultural heritage of all mankind (Chapter 1). Finally, the authors interpret the case of the Elgin Marbles from the point of view of cultural internationalism, and therefore they consider the preservation, integrity, and distribution as important things to consider in deciding the best location. Preservation is very important because if we consider the possible destruction of the marbles, then it is not only a deprivation for the Greeks or for the British, but for the entire planet. Therefore, which of the two parties can preserve the marbles in the best way? Merryman and Else say that there is no reason to suppose that they would be safer in Athens (137). If the decision is made on the issue of preservation, then for 170 years they have been very safe at the British Museum. Athens is very polluted, and sculptural reliefs on the Parthenon have been badly eroded over the years. The integrity of the work is also extremely important. Of course it would be great if they could have been reinstalled in the Parthenon, but unfortunately for several reasons it will not happen. The Greek proposal is to transfer them to a museum close to the Parthenon (200 yards) together with the remaining marbles. The authors wonder if this is a valid support for the integrity issue. For the distribution aspect as another international interest, the authors prefer to focus on the access and conclude that there are no reasons to consider Athens as a more accessible place for the world s people than London.

33 Spagnoli/ Chapter Summary In conclusion, this chapter has analyzed the complexity of cultural property regulation and the differences between nationalism and internationalism. Source nations and archeologists tend to protect cultural property nationalism because they consider themselves the owners of the property, while collectors and museums favor circulation of cultural property and therefore internationalism. Furthermore, UNESCO, the most important organization in support of cultural property, seems to regulate it too excessively and with lot of contradictions. As a consequence, these regulations limit the circulation of culture and therefore favor nationalism. Additionally, this study listed the most important conventions on cultural property and discussed the limitations on their applicability, especially when countries involved in a case have not ratified them. At the end of this chapter, two previous cases of cultural property between countries have been discussed: the first one involving only arts administrators and the second involving politicians and state governments. The result of this analysis highlights the importance of arts administrators as better intermediates in cultural property disputes. Finally the repatriation of cultural property and the problems arising from it have been analyzed with a specific focus on two famous cases: the Teotihuacan Murals and the Elgin Marbles. In summary, this literature review highlighted the point that the cultural and juridical ownership of art works do not always coincide, and that the cultural property regulation is too confusing and weak, especially whenever the domestic and private laws regulate international cases.

34 CHAPTER 3 Research Methodology In this chapter I analyze the research methodology and the data needed to best answer my research questions. Since the goal of this thesis is to provide a detailed description and analysis of international cultural property regulation, this study will utilize mixed-methodology, a combination of qualitative and quantitative approaches. In particular, I use a type of qualitative methodology called the ethnographic case study. In what follows, I first explain the characteristics of this methodology and then the data collection and process. At the end I describe the scope, validity, and limitations of this study. 3.1 The Ethnographic Case Study Approach Dr. Robert Yin is one of several scholars who has studied qualitative research methods, and in particular the case study methodology. He has authored numerous books and peer-reviewed articles, including Case Study Research: Design and Methods. In this book he affirms that the case study methodology is the most appropriate for understanding complex social phenomena (18) and for answering the how and why questions (17). He also affirms that the how and why types of questions are more explanatory and likely to lead to the use of case studies, histories, and experiments as the preferred research methods (9). Moreover, the case study is preferred for examining contemporary events when the relevant behaviors cannot be manipulated (10). In fact, the peculiarity of the case study is that the investigator has little or no control over the events. In addition, Yin points out that although case studies and histories can overlap, the case study s unique strength is its ability to deal with a full variety of evidence -

35 Spagnoli/30 documents, artifacts, interviews, and observations - beyond what might be available in a conventional historical study (11). Furthermore, Yin classifies four different applications of case studies: 1. To explain the presumed causal links in real-life interventions that are too complex for the survey or experimental strategies 2. To describe the real-life context in which an intervention has occurred 3. To illustrate the intervention itself 4. To explore those situations in which the intervention being evaluated has no clear, single set of outcomes (25) Another scholar who has studied qualitative research methods is Dr. Sharan Merriam. Like Yin, Dr. Merriam believes that in qualitative research the investigator should be objective in the analysis of the case. In fact, she declares in her book Qualitative Research: A Guide to Design and Implementation that qualitative research is an umbrella concept covering several forms of inquiry that helps us understand and explain the meaning of social phenomena with as little disruption to the natural setting as possible. However, Merriam goes deeper in her analysis and classifies qualitative research into five categories: the basic or generic qualitative study, ethnography, phenomenology, grounded theory, and case study (22). Table 3.1 shows Merriam s five categories.

36 Spagnoli/31 Table Common Types of Qualitative Research in Education Source: Merriam 18 Merriam also points out that these categories all share the following characteristics of qualitative research: the goal of eliciting understanding and meaning, the researcher as primary instrument of data collection and analysis, the use of fieldwork, an inductive orientation to analysis, and findings that are richly descriptive (22). However, Merriam disagrees with Yin on the classification of case study. Yin considers a case study as an empirical inquiry that investigates a contemporary phenomenon within its real-life context, especially when the boundaries between phenomenon and context are not clearly evident (13) while Merriam, influenced by Smith and Stake, affirms that the single most defining characteristic of case study research lies in delimiting the object of study, the case (23). For her the case is a single entity around which there are boundaries. Merriam further defines qualitative case studies into three subcategories: particularistic, descriptive, and heuristic. A particularistic case study focus[es] on a particular situation, event, program, or

37 Spagnoli/32 phenomenon This specificity of focus makes it an especially good design for practical problems (43). In a descriptive study, the end product is a thick description of the phenomenon under study Instead of reporting findings in numeric data, cases studies use prose and literary techniques to describe, elicit images, and analyze situations (44). Finally, heuristic studies illuminate the reader s understanding of the phenomenon under study. They can bring about the discovery of new meaning, extend the reader s experience, or confirm what is known (45). Merriam also divides the development of the case study into three frames. The first is the theoretical framework of the study, which defines the research problem and which includes the questions that need to be answered. All the information that is pulled from the larger frame of the study helps to construct the problem statement, which is the second frame. The third frame is the exact purpose of the study (68). Ethnography involves cultural analysis because, as Wolcott writes in his classic article on ethnographic intent, description is not enough to constitute ethnography. As he explains, Culture is not lying about, waiting patiently to be discovered; rather, it must be inferred from the words, and actions of members of the group under study... (Wolcott, 192). Analyzing a culture means not simply recounting behaviors and events, but inferring the cultural roles that guide behaviors and events. The intention of ethnography is to capture the everyday, the unwritten laws, conventions and customs that govern the behavior of persons and sub-groups within a culture. Balaji Parthasarathy, in his paper Innovation and its Social Impacts: The Role of Ethnography in the Evaluation and Assessment of ICTD Projects provides a description of the ethnographic case study approach. Case study research is used when the research topic

38 Spagnoli/33 has to be defined broadly, the research needs to cover several variables and not just isolated ones, or the research has to rely on multiple sources of evidence. Unlike an approach that may disembody and obscure, the case study method includes the context as a major part of a study. Parthasarathy agrees with Yin that case studies can be as explanatory, exploratory, or descriptive. Explanatory case studies present data bearing on cause-and-effect relationships, exploratory case studies attempt to define the questions and hypotheses of a subsequent study, and descriptive case studies present complete descriptions of phenomena within their context. Ethnography literally means to write a culture (Parthasarathy,7). Ethnographers look for patterns, describe local relationships (formal and informal), understandings and meanings (tacit and explicit), and try to make sense of a place and a case in relation to the entire social setting and all social relationships within it. While a full-fledged ethnography typically demands long-term engagement in the field, ethnographic case studies can be conducted over shorter spans of time to explore narrower fields of interest to help generate hypotheses (Parthasarathy,7). Also, Parthasarathy argues that since ethnographic studies focus on identifying forces, factors, histories and people who play decisive roles in determining social outcomes issues, by situating local relationships, understandings and meanings, within shifting polities and economies, at various spatial scales, they are effective in unraveling the processes of change. Specifically, this means that ethnographic studies can be used to generate hypotheses. (8) 3.2 Case Study Design Following these theories, I selected the ethnographic case study approach because it is more suited to answering my research questions and to generating hypotheses and solutions. In particular, as Yin explains in his book, I want to understand

39 Spagnoli/34 a real-life phenomenon in depth. Concerning one of his own studies, Yin wrote that such understanding encompassed important contextual conditions because they are highly pertinent to my phenomenon of study (Yin, 18). Therefore, I decided to focus on one particular international legal art case on cultural property: the ongoing and unsolved case of Italy v. J. Paul Getty Museum. I have chosen this case for these reasons: 1. The case is central on issues of cultural property. 2. The case involves two countries with different social, cultural and economic characteristics (Italy and the USA). 3. The jurisdiction of the case is domestic (Italy has the jurisdiction). 4. The case is still open and unsolved. 5. The case proves how the regime of international cultural property (mal)functions. 6. The case can be used to make suggestions on how to improve the international regulation on cultural property. 7. The case s outcome will affect the outcomes of other international legal art cases. 8. The case involves socio-cultural phenomena. Following Merriam s classification, my research also has the characteristics of an ethnographic study. She points out that a case study is employed to better understand a situation and its meaning to those who are involved. My case study analyzes the ongoing legal case between Italy and the Getty Museum and the consequences of the court s decision for the museum s system. What makes it an ethnographic study is that I also examine human society and cultural differences in geographic regions, administrative structures and resource environments, presenting a sociocultural interpretation of the data. I believe that it is extremely important to understand the different economies and cultures that in my opinion are the true powers that control the outcome of the case. Without any doubt, the two countries involved in the Italy v. J. Paul Getty Museum case have different cultures, heritages, and legal and economic

40 Spagnoli/35 systems. These sociocultural aspects will affect the result of the negotiation, which mostly depends on the economic bargaining power of the two parties. At the end of my study I will therefore present a sociocultural analysis, which I will approach by thinking, as Merriam suggests, like an anthropologist (28). I believe that without an ethnographic analysis, my study would be incomplete. Merriam explains that the structure of a problem statement, which essentially lays out the logic of the study, can be compared to the funnel shape broad at the top and narrow at the bottom (58). At the top there is the general area of interest, which in my study is international cultural property. Then I narrow the topic toward the specific question: Who is the cultural owner of the Lysippus statue? What I have found in the literature review by itself does not address my question. What needs to be done, as Merriam says, becomes the precise purpose of my study, which is the third frame and the result of the literature review and the theoretical framework. It was therefore the purpose of my thesis to design an ethnographic case study to analyze the contentious art case on cultural property between Italy and the United States, Italy v. J. Paul Getty Museum, to highlight how the regime of cultural property currently malfunctions in international legal cases, and to identify strategies for more reasonable and fair solutions Qualitative Data Collection Qualitative research is a much more subjective form of research, and consists of direct quotations from people about their experiences, opinions, feelings, and knowledge obtained through interviews; detailed descriptions of people s activities, behaviors, actions, recorded in observations; and excerpts, quotations, or entire passages

41 Spagnoli/36 extracted by various types of documents (Patton 10). While Merriam offers three broad categories of data used in a case study- observation, interviewing, and document analysis (Merriam 94)-Yin classifiess the sourcess of evidencee into six categories: documentation, archival records, interviews, direct observations, participant- observation, and physical artifacts (Yin 80). Table 3.3 shows the classification of Yin s sources of evidence. Table Yin s Sources of Evidence Source: Yin 101. Yin points out that not all sources of evidence need to be used in every case

42 Spagnoli/37 study, but he does not recommend using only one source. (114). What Yin suggests instead is the use of many different sources of evidence because this practice allows the investigator to address a broader range of historical and behavioral issues. This is achieved through the process of triangulation, which is the development of converging lines of inquiry (114). Chart 3.4 explains Yin s triangulation process. Chart Convergence e of Multiple Sources of Evidence (Triangulation) Source: Yin 117. The evidence used in my thesis is triangulated because the data was collected from multiple types of sources (qualitative data collection), mostly in the form of interviews, archival records, and document analysis.

43 Spagnoli/ Interviews Interviews are one of the most important sources of case study information. In particular, the focused interview is used in a situation where the respondent is interviewed for a short period of time, usually answering set questions. In July 2010, I interviewed in his office in Rome, Professor Gaito who is one of the defense attorneys of the Getty Museum. This focused interview gave me the official statement on the museum s behalf. Professor Gaito granted me a one-hour interview that I recorded on audiotape, transcribed it verbatim, and included it in the Appendix Archival Records Archival record analysis is also extremely important for answering my problem questions, especially the records of past legal cases that involved multiple countries in cultural ownership issues and that were solved through domestic courts. The documents related to the Italy v. J. Paul Getty Museum case, especially the one of the last ruling of the Court of Pesaro of February 2010, constitute the core component of this study. However, an examination of other relevant legal cases will also be included in the data. For example, the Roman Torso Case (United States v. Torso of Apollo) has been analyzed for what it reveals about issues in jurisdiction and good faith. Another case, the famous dispute between the original owner and the good-faith purchaser of stolen art (Winkworth v. Christie, Manson & Woods, Ltd., 1980), is discussed to show another example of the application of the lex situs. Finally, to show the role of the economic bargaining power on the decision of international cases, I summarize the records of the 2007 diplomatic negotiation between Italian Minister for Cultural Heritage and

44 Spagnoli/39 Activities Mr. Rocco Buttiglione and his successor Mr. Francesco Rutelli with the Getty Museum for the restitution of 40 artworks illegally exported from Italy Documentation As discussed in Chapter 2, the literature utilized for this study has been predominantly qualitative and focuses on the theories and history of international regulation of cultural property. Yin affirms that documentation commonly consists of two separate collections: the data or evidence base, and the report of the investigator, whether in article, report, or book form. He also highlights the importance of developing a database which should include four components: notes, documents, tabular material, and narratives. The author points out that Your own notes are likely to be the most common component of a database.... They may be a result of your interviews, observations, or document analysis (115). Case study documents (mostly public records) have been collected during the course of the study and included in the annotated bibliography. For example, Professor Gaito provided several documents explaining the Getty Museum s motivations in court and the strategy of Getty s legal team going forward. I have the Court of Pesaro s hearings and ordinances (in Italian) of 2009 and 2010 that I have translated for convenience. During the past year I have read and analyzed several articles from the Italian and international press which are important to highlight the role of the press in the court s final decision. In addition, the texts of the most important conventions on cultural property, 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the US Convention on Cultural Property Implementation Act (CCPIA), the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects,

45 Spagnoli/40 and many more, are also part of my data. In addition to all these documents, I have taken a close look at the Italian Civil, Criminal, and Navigation Codes, as well as Italian laws on cultural property, to demonstrate the differences between the Italian and American legal systems. 3.4 Quantitative Data Collection As explained above, a mixed-methodology approach will be used in this study. Therefore, results from surveys and statistics will be analyzed to report findings and propose better solutions for future art cases. In particular, results from the Artifacts Abroad survey designed by Heritage Key contain important findings about the opinions of online users regarding the need, or lack of it, for the return of artifacts abroad. Another point of concern in cultural property cases is the expense. For that reason, I m including an analysis of the 2010 Getty Museum 990 form using the website Guidestar.com, which will give a generic estimation of the legal expenses paid by the museum. The involvement of multiple lawyers (in Los Angeles, New York, and Rome) to defend the museum in Pesaro makes this endless case extremely expensive for the museum. There is a need for a better solution to cultural property legal cases, and it is therefore the aim of this study to analyze both qualitative and quantitative data to propose solutions that benefit both parties. 3.5 Data Analysis Merriam affirms that data collection and analysis are simultaneous activities in qualitative research (Merriam 165). Analysis begins with the first interview, the first observation, the first document read. Emerging insights, hunches, and tentative hypotheses direct the next phase of data collection, which in turn leads to the refinement

46 Spagnoli/41 or reformulation of questions, and so on (166). Merriam explains the different strategies for the analysis: the ethnographic analysis, the narrative analysis, the phenomenological analysis, the constant comparative method, the content analysis, and the analytic induction. The ethnographic analysis is the one that best suits my study, since it focuses on the culture and social aspects behind the topic of cultural property. In particular, Merriam cites Lofland and Lofland, who also suggest categories and subcategories for organizing aspects of society. These categories deal with 1. the economy; 2. the demographics such as social class, sex, ethnicity, and race; 3. basic situations of human life, including family, education, and health care; and 4. the environment. (201) In my study, I describe the real-life context in which the intervention has occurred, illustrate the intervention itself, and finally provide a discussion for a probable outcome of the case without the use of surveys. Instead of surveys, I use alternative methods of data collection and analysis. According to Yin, the analysis of case study evidence is one of the least developed and most difficult aspects of writing case studies. Much of the analysis depends on the case study writer s own style of rigorous thinking along with sufficient presentation of evidence and careful consideration of alternative interpretations. Yin explains that data analysis consists of examining, categorizing, tabulating or otherwise recombining the data collected to address the initial focus of the case study (Yin 102).Yin also outlines five modes of analysis: pattern-matching, explanation-building, time-series analysis, logic model, and cross-case synthesis ( ). He says that none of these techniques are easy to use, but he encourages researchers to make every effort to produce an

47 Spagnoli/42 analysis of the highest quality. In order to accomplish this, he presented four principles that should attract the researcher's attention: Show that the analysis relied on all the relevant evidence. Include all major rival interpretations in the analysis. Address the most significant aspect of the case study. Use the researcher's prior, expert knowledge to further the analysis. In my study the data are analyzed according to the pattern-matching method outlined by Yin. This type of logic compares an existing pattern with a predicted one. Internal validity is enhanced when the patterns coincide. If the case study is an explanatory one, the patterns may be related to the dependent or independent variables. If it is a descriptive study, the predicted pattern must be defined prior to data collection. 3.6 Validity Dr. Sharan Merriam points out that ensuring validity and reliability in qualitative research involves conducting the investigation in an ethical manner (209). The validity deals with the question of how research findings match the reality; reliability refers to the extent to which research findings can be replicated (Merriam 213). Merriam affirms that reliability is problematic in the social sciences simply because human behavior is never static. Moreover, she affirms that the connection between reliability and internal validity from a traditional perspective rests on the assumption that a study is more valid if repeated observations in the same study or replications of the entire study have produced the same results (215). However, since this is also an ethnographic study, the real question is not whether findings will be found again, but whether the results are consistent with the data collected (216).

48 Spagnoli/43 Yin suggests thatt validity is best achieved through (1) the use of multiple sources of evidence, (2) the creation of a strategy or database to organize data, and (3) the establishment of a chain of evidencee (Yin 90 98). For this reason I employ multiple sources of evidence: Yin s triangulation strategy, and multiple methods to confirm the emerging finding in an ethical manner without manipulating and controlling the evidence. Yin also suggests that to increase the reliability of the information in a case study, the chain of evidence needs to be maintained (123). This principle is based on a notion similar to that used in forensic investigations. Basically, following this chain, the external observer should be able to trace the steps in either direction (from conclusions back to initial research questions or from questions to conclusion (185). Chart Yin s Chain of Evidence (185)

49 Spagnoli/ Scope and Limitations of the Study This study mainly focuses on the ongoing cultural property case involving the legal dispute between Italy and the Getty Museum of Malibu, Italy v. J. Paul Getty Museum. Data analysis of this particular case aims to answer how the regime of cultural property is regulated between different countries, why sometimes it is a domestic court that rules on international cases, why the cultural ownership does not always coincide with the legal ownership, how the economic bargaining power affects the negotiation between parties, and many other questions listed in Chapter 2. The result of this analysis will help in proposing better solutions for arts administrators and other people involved in issues of cultural property in the arts. Merriam points out that there are several limitations to a case study. She affirms that even if there is the possibility of rich, thick description and analysis of a phenomenon, a researcher may not have time or money to devote to such an undertaking. Qualitative case studies are limited by the sensitivity and integrity of the investigator which is the primary instrument of data collection and analysis (Merriam 14). The subject of my study, the legal case, is still ongoing in Italy, and the Corte di Cassazione (the Italian highest court) still has to proclaim the final verdict: whether the Lysippus statue is part of the patrimony of Italy and therefore needs to come back to Italy, or whether it remains at the Getty Villa. Therefore, the result of my research might be considered incomplete because it does not include the final decision from the Court of Pesaro. My study instead, mainly focuses on the first 46 years of this saga on international cultural property between Italy and the US ( ).

50 Spagnoli/45 Another challenge might be the language barrier. In fact, all the legal documents are written in Italian, are very detailed and difficult to interpret, and may be subject to bias. The interview with Prof. Gaito was also conducted in Italian and later translated in English. Therefore the process of transferring the data from oral to written modes and then from Italian to English might be considered a limitation of the study for possible errors in translation. However, the research and the interpretation aimed to be unbiased, to make the result of the study as reliable and valid as possible. Also, the topic of cultural property is quite vast and there is the risk of giving a too generic analysis of the topic. To solve this concern, the following case study focuses on the specific legal case between Italy and the US, leaving the information about the organizations and the conventions involved in cultural ownership to the literature chapter. 3.8 Chapter Summary In conclusion, the aim of this chapter is to identify the best methodological approach to use in this study. To this end, an exploratory and descriptive ethnographic case study approach has been selected. In the following chapter I analyze only one specific case: the ongoing legal art case between Italy and the Getty Museum, Italy v. J. Paul Getty Museum. This is an extremely interesting case because it opens discussions about the phenomenon of international disputes over cultural property and about possible strategies for solving similar art cases. It also focuses on the social context and different economic bargaining powers in the two countries. Through the collection of data using Yin s triangulation strategy and mixed methodology approach, I address the key research questions proposed in Chapter 2. The answers to these questions have the

51 Spagnoli/46 potential to aid in finding solutions to similar legal arts cases in the future and to help arts administrators dealing with issues of cultural property.

52 Chapter 4 The Italy v. J. Paul Getty Museum Case In order to answer the research questions posed by this study I designed an ethnographic case study. Therefore, in this chapter I illustrate how a legal art case on international cultural property is currently regulated. In fact, the life-size bronze statue called Victorious Youth, better known as the Getty Bronze, is today at the center of the most famous and contentious art case between Italy and the United States, Italy v. J. Paul Getty Museum (view Appendix B.1). In 1964, Romeo Pirani, captain of the fishing boat Ferruccio Ferri discovered the famous statue in the deep sea 40 miles south of Fano, a provincial town on the Adriatic Sea. Most likely this statue was fashioned in ancient Greece by the Greek sculptor Lysippus, Alexander the Great s favorite artist, and sunk with the ship that was carrying it to Italy after the Romans conquered Greece. The statue vanished and reappeared in the illegal art market multiple times, until 1977 when, at the price of $3,900,000 the Getty Museum of Los Angeles/Malibu purchased it. How it entered the Getty Museum s permanent collection remains a mystery. In what follows I first provide an overview of this complex, ongoing, and unsolved legal case on cultural property, and I explain which country has the legal jurisdiction of the statue. Then, I compare the motivations of the last ruling of the Court of Pesaro of February 2010, which ordered the seizure of the statue and the return to Italy, with the motivations of the Getty defenders. In conclusion, I analyze the reasons for the legal and cultural interest of Italy, and finally provide a discussion of the potential outcome of the case.

53 Spagnoli/ History of the Italy v. the Getty Museum Case It was the same fisherman, Romeo Pirani, who told what happened at dawn of that Friday in 1964: I had thrown the nets 40 miles to the wide of Fano. I pulled them, and I found in front of me a bronze statue without feet, all encrusted. It seemed a deepsea diver ( Il Getty Bronze ). Unfortunately Pirani died in 2004 without revealing the exact place of the discovery, but he left a sketchbook with the map of his treasure hunt. Worried that a neighbor would tell Italy's financial police, with his companions he buried the bronze in a cabbage field in Carrara di Fano (Felch, The Amazing Catch ). He said, We wanted to sell it, and we spread around photographs of it. In January of 1964 a gentleman, whose name I do not know, introduced himself, and bought it for 3.5 million Italian Liras (about $1000 current U.S. dollars). We split up the money between us ( Lisippo, Storia Lunga ). From the fisherman Pirani, the bronze statue passed into the hands of Pietro, Fabio and Giacomo Barbetti from Gubbio, local antiquarians who occasionally bought ancient objects turned up by farmers or fishermen and sold them to wealthy foreigners (Felch, The Amazing Catch ). In 1966 the Court of Perugia accused Pirani, the Barbetti brothers, as well as a priest, Father Giovanni Nagni, and three other dealers of receiving the bronze statue illegally, omitting also to report the property found within three days to the nearest marine authority. (Italy v. J. Paul Getty Museum). However, on May 18, 1966, the Court acquitted them for insufficiency of evidence. On February 27 of the following year, the Court of Appeals condemned them, but in May 1968, the sentence was cancelled by the Corte di Cassazione, which is the highest court in Italy similar to the American Supreme Court ( Lisippo, Storia Lunga ). On November 18, 1970, a new

54 Spagnoli/49 appeal process took place, resulting in acquittal. The judges argued that it was impossible to verify the artistic, historic and archeological interest of the Lysippus statue, which in the meantime had disappeared, and that it was also impossible to verify whether it was found in Italian territorial or international waters ( Lisippo, Storia Lunga ). Based on the reconstruction made by Prof. Alberto Berardi, an important expert on the history and art of Fano, the statue left Gubbio with a shipment of medical supplies sent to Brazil to a missionary relative of the Barbetti brothers ( Lisippo, Storia Lunga ). Mr. Heinz Herzer, a German antique dealer, was asserted to have acquired the bronze from a South American collection on behalf of the international art consortium Artemis, entrusting it for restoration to the Doerner Institut of Munich in 1971 ( Lisippo, Storia Lunga ). Mr. J. Paul Getty Senior, the wealthy founder of the California museum, wanted to purchase the statue in a joint venture with Mr. Thomas Hoving, the former director of the Metropolitan Museum (Hoving). Mr. Hoving examined the bronze in 1972 in Munich, but he did not purchase it because the doubts about the origin of the statue were too many (Felch, The Amazing Catch ). He affirmed that only with the accurate written authorizations from the Italian authorities he was going to allow the acquisition (Italy v. J. Paul Getty Museum). Unfortunately, in 1977 Mr. Getty died, and immediately after the museum acquired the statue. In fact, the Getty Museum bought the Lysippus statue from Artemis for almost $4,000,000 (Italy v. J. Paul Getty Museum). A new dramatic turn of events happened in 1989 when Dario Felici delivered to the public prosecutor's office of Pesaro a fragment of marine concretion belonging to the

55 Spagnoli/50 statue that he found in the cabbage field of Carrara. However, the judges, even if they suspected that the statue was illicitly exported, could not proceed against anybody because the hypothetical crimes attributed to the Barbetti brothers couldn t be prosecuted because the statute of limitations had expired, and the Lysippus statue was exhibited in the museum in Malibu. In 2007, Italian Minister for Cultural Heritage and Activities Mr. Rocco Buttiglione and his successor Mr. Francesco Rutelli initiated a legal battle in Rome against the Getty Museum for the Lysippus statue and for other artworks illicitly exported from Italy. Minister Rutelli said: We started off this negotiation asking Getty to return 52 artworks. Getty initially offered to return 26 of them. After a long period of 'stop and go' the conclusion is that they will return 40 artworks to Italy By closing this agreement with Getty we confirmed that we'll withdraw from the legal proceedings (against Getty) as far as these 40 artworks are concerned. For future controversies with Getty and other museums with which we have reached agreements, we shall solve our disputes through constructive dialogue, without pointless clashes, in a spirit of real cooperation ( Getty to Send ). However, as a result of the negotiations with Italy, the Getty Museum agreed to give back forty artworks illegally exported from Italy excluding the Victorious Athlete of Fano. The director of the Museum, Mr. Michael Brand, refused to send back the Bronze statue because, according to him, it had not been proven that the statue belonged to Italy. On April 4, 2007, lawyer Tullio Tonnini, former president of Le Cento Citta (One Hundred Cities), an association in support of the historic patrimony of the Marche region, presented a statement to the public prosecutor of Pesaro, Silvia Cecchi, for the crime of clandestine export of the Lysippus statue, violation of the customs norms, and contraband against unknowns. During the summer, the magistrate asked the

56 Spagnoli/51 investigating magistrate, Daniele Barberini, to confiscate the statue, but he rejected the claim explaining that the return of the statue to Italy could happen only through diplomatic ways and not penal ( Lisippo, Muore ). However, even if the previous trials resulted in acquittal, the community of Fano never gave up on the return of the original bronze statue because it truly believes it is the legal owner of the statue. It is important to know that a life-size bronze replica stands in fact at the entrance to the Fano port waiting to be replaced by the original bronze (Felch, Twist ). In 2009, Alberto Berardi, the Le Cento Citta s president, together with the public prosecutor filed a lawsuit with the support this time of the State Legal Advisory Service against the J. Paul Getty Museum. This is the first time that the Los Angeles museum has been dragged into a legal dispute for misappropriation of the Lysippus statue. The previous disputes were against the fisherman, the dealers, or unknown as in Mr. Berardi affirmed that: No museum in the world should exhibit works whose provenance is clearly illegal (Povoledo). On June 12, 2009, the new investigating judge (GIP) Lorena Mussoni declared that the 4th-century BC statue was patrimony of the State of Italy. Being fished out by an Italian ship, and disembarked in Fano, the statue was subjected to an obligation of declaration and therefore the state would have had the possibility of exercising the preemption right or compulsory acquisition (Italy v. J. Paul Getty Museum). On December 21, 2009, the person responsible for the collection at the Getty Museum, Mr. Stephen Clark, was interrogated in Pesaro. He presented documents showing the presumed good faith of the museum. It was true that the crimes could not be prosecuted because the statute of limitations had expired, but the investigating magistrate, Judge Mussoni,

57 Spagnoli/52 thought that the immediate seizure was, however, applicable, citing "serious negligence" in the museum's acquisition of the ancient statue in 1977, with a 37-page ruling deposited on February 11, 2010 ( Getty Appeals ). 4.2 Domestic Jurisdiction and Legislation Why is the Italian jurisdiction making a verdict in this matter? Even though the statue is now located in a foreign country, Los Angeles, USA, for the Italian legal team the lex situs needs to be followed, and therefore the Italian law needs to be applied. The term lex situs, in fact, refers to a conflict of legal rules that selects the applicable law based on the venue or location of something (Duhaime). As of February 11, 2010, Judge Mussoni affirmed that the relevant place for understanding the legal regulation can only be the Italian territory, where the statue was at the moment of its transfer to a foreign country (Italy v. J. Paul Getty Museum). Furthermore, the judge wrote that the application of Italian penal law is required because the sculpture was discovered by an Italian motor-fishing boat that landed on the beach of Fano (Italian Penal Code art. 3-4). Also, according to the norms of private international law, private ships and aircraft are subject to the criminal law of the state of their flag when they are in that state s waters or in a territory in which no sovereignty can be applied (Italian Legislative Decree 218/95 art. 51). The same principle is established also in the Italian Code of Navigation, which stipulates that in deep-sea ships flying the Italian flag are equal to all effects to the Italian territory (art. 4). In addition, the 2009 ordinance affirmed that the jurisdiction to follow was Italian because the criminal behaviors happened in the cities of Fano and Gubbio. Even the Getty Museum recognized the Italian jurisdiction since it was aware that the statue was found in Italian

58 Spagnoli/53 territory and therefore was originally coming from Italy (Italy v. J. Paul Getty Museum). For the Italian legal team it is extremely important to admit that the asset s juridical regime is Italian because as a direct consequence it proves the Italian state s right of ownership of the statue. In fact, during the hearing of June 12, 2009, the judge affirmed: In case of a discovery in the deep sea of maritime wrecks of historical and artistic value by a ship flying the Italian flag, as it happened in this specific case, the Italian law is applied and in particular, the national norms in matters of cultural assets. The positive assessment of the applicability of the Italian law brings as a consequence the subsistence of a right of property of the Italian state on the asset discussed, as a direct consequence of the applicability of the law of the state flag. (Italy v. J. Paul Getty Museum) Judge Mussoni said that the statue needs to be considered Italian property because it is an archeological asset found in Italian territory and that it is the Italian law in protection of cultural assets that needs to be applied. This brings as a consequence the nationalization of the statue intended as an acquisition by the right of ownership a state has of an asset. In addition, even the international private law affirms that assets, their purchase and the loss of movables, is regulated by the law of the country where they are situated (Italian Legislative Decree 218/95 art. 51). For all these reasons, even if the statue is now located abroad, it is therefore the Italian civil and penal laws that need to be followed. The consequence of using the domestic law is that the Italian judges are less neutral and might favor the return of the statue to Italy. 4.3 Good Faith Bona Fide During the Italy vs. J. Paul Getty Museum trial of February 2010, the Italian legal team in addition to demonstrating that the statue is patrimony of Italy, has been focusing on one key question: Was the Getty Museum acting in good faith when it purchased the statue in 1977?

59 Spagnoli/54 Professor Alfredo Gaito, one of the Getty s lawyers, argues that the museum bought the statue through legal channels and with a clear title. He said, Consistent documentation suggests that the sale was done in good faith because the seller offered sufficient guaranties to overcome every doubt (Poveledo). He also affirmed that members of the Board of Trustees of the J. P. Getty Museum were not aware of actions of Italian authorities toward the recovery of the statue, and that they completely trusted the professionalism of Mr. Herzer (representing Artemis) who sold the statue to them. In addition, the Italian Supreme Court, the Corte di Cassazione, and Court of Appeal of Rome declared in 1970 that it was impossible to affirm the provenance of the statue from the Italian territorial waters (Italy vs. J. Paul Getty Museum). During my interview with Professor Gaito he confirmed that there is a contract between the Getty Museum and Artemis. What it is missing is the contract between Artemis and the previous owners. The Getty Trust relied completely on the good reputation of the Artemis consortium. He pointed out during the interview that: the Prime Minister of Belgium, the Prince of Belgium, and the billionaires of that period were part of the Artemis consortium Getty s doubts were about the asking price not the origin; since the price, strangely had gone up. Basically, Getty bypassed the then director of the Metropolitan Museum and was able to pay a lower price than the one expected by Hoving. I believe Hoving had added a fee for his mediation to the price of the statue. Getty went around him and paid less; hence a certain resentment by Hoving, who began to speak ill of Getty. (Gaito Interview) He is totally convinced that the Getty Museum acted in good faith when in 1977 purchased the bronze statue. Moreover, the museum s good faith is supported by the fact that museum could have created a false contract between Artemis and the previous owners (Gaito Interview).

60 Spagnoli/55 For the Italian judge, on the other hand, the excuses adduced by the defense were not convincing and suitable to demonstrate the good faith of the museum for an insurmountable reason: the lack of the original title of ownership from the seller. In fact, the company Artemis, represented by Mr. Herzer, who had acquired the statue from Italian vendors in Brazil, did not have the original title because the statue was illegally exported from Italy. Italian Civil Code specifically declares that to claim ownership, the owner needs to have a proper title, the conveyance of the asset, and a statement of good faith (art.1153). In this case the documents attesting the legal transaction between Artemis and Brazil do not exist. This is a very important matter because only by examining the act of purchase from the vendors and the files concerning the first transaction, could the Museum have established the regularity of the provenance of the statue. 4.4 Ownership through Possession - Usucapio The Getty Museum s legal defenders affirmed that the museum became the legitimate owner as a consequence of its continuous possession of the statue from the moment of its purchase (November 1977), according to the law of possession through usucapio. The latest ruling, in fact, recognizes that ownership can be acquired by a length of possession for more than twenty years (Italy vs. J. Paul Getty Museum). The Italian judges instead did not even accept the right of ownership by the Getty Museum for usucapio, since Italian law, which has its origin in Roman law, does not allow this kind of acquisition of ownership to the non-available patrimony of the State (patrimonio indisponibile), such as things of historical, archaeological, paleontological and artistic interest (Italian Civil Code art. 826). Therefore, for the Italian judge there is

61 Spagnoli/56 no qualified title of ownership and not even good faith on the part of the Getty Museum as a third party, which did not apply due diligence when purchasing the Lysippus statue. Professor Gaito points out in his interview that the bronze statue cannot be considered part of the non-available patrimony of the state of Italy for the following reasons: a) The statue is not Italian but Greek; b) It could be instead non-available patrimony of the state of Greece because it may have been stolen by the Romans when they plundered the stadium in Greece; c) The statue was not found in Italian waters (Gaito Interview). Moreover, he affirms that the judges in Pesaro explained that the statue became Italian from the moment the fishermen found the statue and brought on the land of Fano without declaring it to the Italian Maritime Authorities. He argues that there are two different profiles: the first one regulated by the Italian navigation code, and the second regulated by the Italian criminal regime: Every wreck found by an Italian ship is not subject to the taxes or rights of the state but instead belongs to the fisherman. We should clarify instead the concept of wreck: a statue, not even integral, should be considered a wreck. As a consequence, if whoever finds a thing in the middle of the sea legitimately becomes the owners, then for which reason that statue found by the fishermen and landed on the beach of Fano without declaring it to the Italian authorities (Carabinieri) suddenly becomes property of the Italian state? Everything depends by the implementation of a bureaucratic aspect. If the fishermen were educated, they would have declared it, not paid the taxes, could legitimately hold it and sell it. The ignorance of the penal law cannot affect the legal regime of the statue. This is the most important point (Gaito Interview). The validity of the title is also considered as a requirement for legal ownership by the International Council for Museums (ICOM), an international organization of museums and museum professionals which is committed to the conservation, continuation and communication to society of the world's natural and cultural heritage, present and future, tangible and intangible (ICOM, Mission). In fact, in the Code of

62 Spagnoli/57 Ethics for Museums of 2006 it is explicitly written: No object or specimen should be acquired by purchase, gift, loan, bequest, or exchange unless the acquiring museum is satisfied that a valid title is held. Evidence of lawful ownership in a country is not necessarily a valid title (2.2 3). The fact that the J. Paul Getty Museum evidently did not ask to see the previous contract between the seller, Artemis, and the previous owners, and gave the excuse of bona fide (good faith) at the moment of purchase, does not qualify it to be the legal owner. However, Professor Gaito has a different opinion on this matter. During the interview he explained that a couple of years after the Lysippus acquisition, the Getty Museum s curator, Mrs. Marion True introduced new rules to better regulate future purchases. Prof. Getty is convinced that: The fact that this item [the statue] was purchased earlier [and that] all of the conditions we have now are missing, is not in itself proof of illegal acquisition; things worked differently before. Unfortunately, I rather see the chronological length of the negotiations and the scruples of older Getty, who had given provision to establish provenance; since I do not believe Getty s employees have ever dared to contradict him. (Gaito Interview). The retroactivity of the new regulations is also another important aspect in cultural property. If every country starts asking for the return of their artworks based on the fact that museums did not apply the due diligence at the moment of the acquisition (that is required today), it might create a domino effect.

63 Spagnoli/ Negligence - Negligencia For the Italian judges, the J. Paul Getty Museum has acquired an artwork of inestimable value without completing serious and objective verifications regarding the legitimacy and the lawfulness of its origin (due diligence). It instead simply relied on the opinions of the same vendors lawyers, who clearly had an economic interest in concluding the transaction. The Museum instead should have investigated the origin of the statue and asked for assistance from Italian authorities. It is a behavior despoiled by a very serious negligence said Judge Mussoni, since members of the J. Paul Getty Trust, and before them also Mr. J. Paul Getty Senior, knew that the statue was found by Italian fishermen and brought into Italian territory (Italy vs. J. Paul Getty Museum). They also knew that Artemis bought the statue directly, as lawyer Grimaldi wrote in a letter to the museum by Italian sellers accused of receiving stolen goods (Italy vs. J. Paul Getty Museum). Moreover, the acquittal from the accusation of recycling and abetting of the sellers Barbetti and Nagni does not change the fact that the claim of ownership by Mr. Herzer (Artemis) was missing, and does not justify the Getty Museum s negligence. Furthermore, Mr. J. Paul Getty Senior, during the negotiation for buying in joint venture with Mr. Hoving, the former president of the Metropolitan Museum, expressly required the original title of ownership from Mr. Herzer. He wanted to verify the existence of a right of ownership of the statue from Italy, the way in which the statue had been taken out of Italy, and the existence of a possible jurisdiction by the State of Italy over the statue. In fact, in a letter to Mr. Carrit, the lawyer of the Artemis, Mr. Hoving clearly wrote that there was not going to be any deal until certain legal questions

64 Spagnoli/59 were clarified (Hoving). Since Mr. Herzer was not able to provide such documents, Mr. Hoving, representing the Metropolitan Museum, and Mr. Getty Senior, representing the Getty Museum, renounced the deal (Italy vs. J. Paul Getty Museum). However, only after the death of Mr. Getty Senior, the Getty Museum was able to purchase the bronze sculpture through the curator Mr. Jiri Frel, without completing the instructions required by Mr. Getty Senior (Felch, The Amazing Catch ). The Italian authorities in fact were never contacted by the Getty Trust members before the purchase. However, even admitting that the members of the Getty Trust relied completely on the legal statements made by Mr. Herzer and his lawyers, for the Italian legal team, the Getty Museum acted with negligence, since it omitted executing all the controls regarding the existence and the legitimacy of the title of purchase. Furthermore, the negligence of the Getty Museum of Malibu is very serious since it is such a prestigious and famous organization. Unfortunately, the International Council of Museums sees more and more cases of malpractice by major museums in acquiring antiquities without provenance. The Code of Ethics of the Museum states the following: Every effort must be made before acquisition to ensure that any object or specimen offered for purchase, gift, loan, bequest, or exchange has not been illegally obtained in or exported from, its country of origin or any intermediate country in which it might have been owned legally (including the museum's own country). Due diligence in this regard should establish the full history of the item from discovery or production (ICOM, Code of Ethics for Museums 2.3 3). Since the Getty Museum did not act in good faith but with negligence, the Italian judge, on February 11, 2010, requested seizure of the statue called Victorious Youth attributed to Lysippus and its return to Italy (Italy vs. J. Paul Getty Museum). In this way Italy will be able to get back the statue illicitly stolen from its cultural patrimony,

65 Spagnoli/60 and illegitimately kept by the California Museum (Italian Code of Cultural Assets art. 65). Prof. Gaito has a completely different opinion. During the interview he explained: But if you go to a car dealer, Fiat in Italy, Chrysler for you there, and buy a car that is 100% guaranteed to be inspected, serviced, perfect, wouldn t you rely on the name credibility of those who sell it to you? If you checked who made up the consortium Artemis you might be surprised; because it included the Prime Minister of Belgium, and billionaires of the time. Artemis was a company that is still publicly traded (Gaito Interview). Also, the Italian sentence toward the Barbetti brothers was acquitted; the statue was found in international and not Italian waters; there was a decree by the German district attorney that showed that the statue was susceptible to be traded and not a res extra commercium. Therefore, for the Getty defenders the Museum did not act with negligence. 4.6 Seizure - Confiscatio Italian judges were able to demonstrate that the Victorious Youth is property of the State of Italy since it is an archeological asset found in Italian territory and by an Italian ship. It has the characteristics of inalienability and imprescriptibility because it is a res extra commercium (a thing outside commerce), and therefore insusceptible to being traded. (Italian Civil Code art ). For these reasons it needs to come back to its country of origin. Italian law affirms that if assets are found in foreign countries, in territory not subject to the sovereignty of the Italian State, the right of ownership can be established only through the instruments of international cooperation. If the country from which the artwork has been illicitly exported is part of the European Union, the law to follow is the

66 Spagnoli/61 Code of the Cultural Assets and Landscape (art.75). But if the assets have been stolen or illicitly exported from a country that does not belong to the European Union, the dispositions of the UNIDROIT Convention of June 24, 1995, needs to be followed (Italian Code of Cultural Assets art. 87). Unfortunately for Italy, in the Victorious Youth case the statue is in the U.S., which is not a member of the European Union and which did not ratify the international UNIDROIT act. However, the United States is one of over 115 states which signed the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. This convention is the one which deals most directly with the return of cultural property and illicit traffic. Because museums and dealers are aware of cultural property conventions, they should follow the standards listed in the conventions as a minimum to satisfy due diligence (Ritchie 4). For Judge Mussoni this was not done in the case of the Getty Museum, which acted with negligence when it bought the bronze from Artemis. Under the UNESCO Convention of 1970, which both Italy and the United States have ratified domestically, a court should require the United States to return the bronze. The convention in fact requires that articles that are not accompanied by a certificate or other documentation from the country of origin are subject to seizure and need to be offered for return to the country of origin (Duboff and King 20). However, two important dates need to be considered because they might affect the involvement of UNESCO in this case. The convention came into force in April 1972, but President Reagan didn t sign it until Since it is non-retroactive in effect, the convention can regulate cases that happened only after

67 Spagnoli/ (UNESCO and UNIDROIT). Considering that the Getty Museum bought the statue in 1977, this case cannot be regulated by the UNESCO Convention. 4.7 Legal Interest - Locu Standi Another key issue is this: why is the city of Fano considered to be the native place of the statue when it was forged in Greece by a Greek sculptor? Certainly according to the lex situs the statue is Italian property because it was found in Italian waters by a ship flying the Italian flag. But can the city demonstrate to UNESCO s satisfaction that a Greek statue is the cultural property of Italy when it has never been exhibited or even seen in Italy? It is easier, in my opinion, to demonstrate the legal interest than the cultural interest, which is complicated by several issues that are difficult, if not impossible, to resolve. The first question is, what is cultural property? The 1970 UNESCO Convention declares cultural property as property which, on religious or secular grounds, is specifically designed by each state as being of importance for archeology, prehistory, history, literature, art, or science and which belongs to the following categories (art.1). Mr. Rocco Buttiglione, the Italian ex- Minister of Culture, asserts that Italy is the proper home of the Victorious Youth: He may be happy to visit the United States, but sooner or later he will feel nostalgia for his real home, and his real home is Italy. (Blakey 7). He also said that what belongs to the Italian people should return to the Italian people (Blakey 5). But are we really sure that the statue is part of Italian culture when it has never been seen by the people claiming its ownership? After it was discovered in the deep sea, the statue was hidden under a cabbage field, and then illegally exported abroad. The people of Fano are claiming as part of the

68 Spagnoli/63 Italian heritage something that they have never seen other than in photography or at the Getty Museum. The UNESCO Convention defines the categories that determine whether particular property is part of the cultural heritage of a state: (a) Cultural property created by the individual or collective genius of nationals of the State concerned, and cultural property of importance to the State concerned created within the territory of that State by foreign nationals or stateless persons resident within such territory; (b) cultural property found within the national territory; (c) cultural property acquired by archaeological, ethnological or natural science missions, with the consent of the competent authorities of the country of origin of such property; (d) cultural property which has been the subject of a freely agreed exchange; (e) cultural property received as a gift or purchased legally with the consent of the competent authorities of the country of origin of such property (art.4). Since Lysippus was a Greek sculptor and not Roman, the first category cannot be applied, but the second category, which has to do with where the property was found, is more problematic. The 2010 ordinance of Judge Mussoni declares that the statue was found in Italian territory; however, the ordinance of 1970 affirmed the contrary (Italy vs. J. Paul Getty Museum). Since the fisherman Pirani has died, it is impossible today to establish if the statue was found in Italian or international waters. It is also very difficult today to tell how the statue arrived in the Adriatic Sea, whether it was stolen, freely exchanged, or received as a gift. Following the categories of article 4 of the UNESCO convention it is impossible to determine for certain that the Lysippus statue is part of the cultural heritage of Italy. 4.8 Legal v. Cultural Property It is also important to consider Greece as a possible cultural owner of the statue. Where was the statue located before it was found in the Adriatic Sea? Researchers believe that it comes from either Olympia or the youth's hometown. Romans probably

69 Spagnoli/64 carried the statue off from its original location during the first century B.C. or A.D., when Roman collecting of Greek art was at its height. The Roman ship carrying it to Italy may have foundered off the coast of Fano, preserving the statue for centuries in the sea. The feet and ankles were broken off the statue when it was removed from its original stone. In fact, the Victorious Youth was erected before it was loaded into a ship for transport across the Adriatic Sea. The fact that the Getty Bronze is wreathed surely means that he is a victor in some athletic contest, possibly in the Olympic Games (Mattusch 49). The feet and ankles were broken off the statue when it was removed from its original stone, which indicates that the Victorious Youth was erected before it was loaded into a ship for transport across the Adriatic Sea. This evidence demonstrates that the statue was erected in Greece before being shipped. For Professor Gaito it is unlikely that the Romans legally bought the Greek statue. It is instead more probable that they took it when they sacked the stadium in Greece (Gaito Interview). But even if the statue is determined to be part of the cultural property and heritage of Italy, the question of its proper place of residence remains. One argument for keeping the statue in the Getty Museum is that the Getty Villa in Malibu is the only educational center and museum in the United States dedicated to the study of the arts and cultures of ancient Greece, Rome, and Etruria, and therefore it promotes Italian culture (Brand). The Getty is a spectacular replica of a 2000-year-old Roman villa which once overlooked the bay of Naples near Pompeii (view Appendix B.2). Isn t that a better place, the argument goes, for the Lysippus statue to be exposed and admired than in the piazza of the port of Fano? The Getty Villa celebrates the architecture and art of Italy and Greece because Mr. Getty loved the Roman and Greek sculpture, marble, bronze,

70 Spagnoli/65 clay, glass. The number of Roman, Greek, and Etruscan artifacts is 44,000. However, only 1,200 are on display at the museum ( Getty Villa ). The admission price is free, and there were 400,000 visitors in Chart 4.1 is very important because it shows that the Getty Museum is at risk if Italy and Greece start claiming the return of all the artifacts. Chart 4.1 Getty Villa Statistics. 50,000 45,000 40,000 35,000 30,000 25,000 20,000 15,000 10,000 5,000 0 Number of Greek, Roman, and Etruscan Artefacts Number of Ancient World Artefacts on Display Source: The Getty Villa. On the other side, Professor Alberto Berardi put forward what he called a logical argument for returning the statue to Fano: For the Lysippus, not being able to replace it in water, I would think the best place would be closer to the place where it was disembarked, and that is Fano. I do not say this out of parochialism but following a precise logical thread (Giambartolomei). Professor Gaito, instead, has a different opinion. During the interview he told me: one thing is cultural property; the dwelling place is something else. Taking note of your convictions, of the environmental habitat that has been rebuilt in Malibu, I wonder, wouldn t it be sufficient to recognize the statue of Italian/Croatian/most likely Greek paternity and leave it there where it has been for the last 40 years?... Culture is without borders. In the age of globalization it is an anachronism. and if the

71 Spagnoli/66 statue will return to Fano then I think it would be irretrievably ruined (Gaito Interview). However, the fact also that the statue was not part of the 2007 restitution along with the forty objects which were returned to Italy reveals that the Italian government knew that to claim it as Italian cultural property was not going to be that simple. For Gaito this was a mistake of the country of Italy: if the Lysippus statue was considered so important, Minister Rutelli should have not allowed a partial restitution. The Italian authorities should have not accepted the agreement of the restitution of only 40 artworks with the net refusal of the restitution of the bronze statue. There should not have been such a contract. This agreement instead implicitly consents the position of the Getty: the statue needs to remain in the American museum (Gaito Interview). Furthermore, the Victorious Youth statue has been given several different titles, showing even in its terminology the problem of cultural ownership: the Getty Bronze since it has been added to the Getty collection, the Atleta di Fano (the Athlete of Fano) to stress its links with its town of origin, or the Athlete of the Lysippus to emphasize its creator (Blakey 7). The different names highlight even more the complexity of the case and the request of ownership by different countries. Regardless of these difficulties, the participants of the Le Cento Citta association celebrated the news of the decree of seizure of the Victorious Youth by uncorking a bottle of sparkling wine. Mr. Giancarlo d Anna, a member of the regional council, said, What seemed to be an impossible battle has been won thanks to the tenacity of a few people. Now finally new perspectives are opened through the restitution of the statue from the Getty foundation. This restitution will allow us to

72 Spagnoli/67 increase our cultural and tourist offering that is a crucial part of our economy ( Lisippo, Attesa Udienza ). It is indeed, in my opinion, more an economical than cultural issue because as an archeological attraction the bronze statue will bring tourists from all over the world, and therefore increase revenues for the city of Fano. The economy of this small town (with approximately 62,000 people), indeed, is small and differentiated. It is composed by a local handicraft, fishery which is a glorious tradition, agriculture, industry, and tourism that seems to increase, especially from the new infrastructures (airport, port, and thermal structures). Fano is famous for its 20 kilometer sandy beaches that attract every summer thousands of tourists. The Lysippus saga not only is exposing this little Adriatic town to the international press, but in case the statue does go back to Fano, then it would tremendously increase its economy. Hotels, restaurants, local businesses, and local shops will be directly affected by this important attraction. 4.9 Recent Development and Probable Outcome of the Lysippus Saga Certainly it is not easy to predict the outcome of the trial because Italy and the United States are not bound by a bilateral treaty that would require the Getty to return the statue, as countries of the European Union are bound or as the US and Mexico are bound (The Treaty of Cooperation Providing for the Recovery and Return of Stolen, Archeological, Historical and Cultural Properties) ( Lisippo, Dopo ). Even if the Government of the United States of America and the Government of the Republic of Italy signed the 2001 U.S.-Italy Memorandum of Understanding: Provisions for Longterm Loans to protect pre-classical, Classical and Imperial Roman archaeological

73 Spagnoli/68 material, the California legal authority could refuse to follow the Italian request of seizure (USA and Italy). It is possible instead that there will be new litigation with the USA to establish which law needs to be followed: the international or the Italian. In fact, on February 17, 2010, after only six days from the ruling of Pesaro, the Getty Museum presented a draft of appeal to the Italian Supreme Court against the decision that ordered the seizure of the Greek bronze ( Getty Appeals ). The defenders of the Getty Museum contested that the statue does not belong to Italy because it probably was found in international waters, and that the purchase of the statue was not fruit of a crime because the museum acquired it in good faith, without knowing that it had been exported clandestinely. The same day of the ruling of Pesaro, the Getty Museum introduced a request of suspension of the seizure decree, asked that a judge different than Mrs. Lorena Mussoni be assigned to this case, and issued the following statement: It should be noted that the same court in Pesaro dismissed an earlier case in 2007 in which the same prosecutor claimed the Statue of a Victorious Youth belonged to Italy. In that case, the judge held that the statute of limitations had long since expired, that there was no one to prosecute under Italian law, and that the Getty was to be considered a good faith owner In fact, no Italian court has ever found any person guilty of any criminal activity in connection with the export or sale of the statue. To the contrary, Italy s Supreme Court, the Corte di Cassazione, held more than four decades ago that the possession by the original owners did not constitute a crime. The Getty will appeal the Pesaro court s order to the Corte di Cassazione in Rome and will vigorously defend its legal ownership of the statue (Jaskol). Meanwhile, the Procure of Pesaro is studying the possibility of proceeding with an international letter of request to return the bronze to Italy. In fact, UNESCO member states which have lost certain cultural objects of fundamental significance and which are calling for their restitution or return, in cases where international conventions cannot be

74 Spagnoli/69 applied, may call on the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit Appropriation (UNESCO). The Marche Region has confirmed that their people absolutely want the restitution of the statue of Lysippus to its land or origin. A few days after the Pesaro ruling, the Marche Regional Committee approved A resolution that formalizes its support of the State Legal Advisory Service in the investigation of the right of property of the Italian Republic regarding the Lysippus. With this press release the Region Marche Committee intends to collaborate with the State Legal Advisory Service in order to favor the restitution of the precious bronze statue to its community. Therefore, the Marche Region confirms, with this administrative action, the strong determination to obtain the return of the precious archaeological asset, longed for by both Italy and USA, recognizing full gratitude to the judges for their effective engagement in resolving the age-old event (Pincini) Diplomatic Negotiation Perhaps to put the word the end to this everlasting saga, a diplomatic negotiation outside the courtroom between the two countries will solve this case as was the case in previous disputes when the Italian ministry tightened agreements with important American museums. There is a mutual interest to maintain good relationships and a broad cultural collaboration that both the Italian government and the Getty Museum do not want to compromise. For example, soon after the ruling of Feb 11, 2010, the Minister of Cultural Assets, Mr. Sandro Bondi, invited Mr. Mario Resca, director general for development at the Culture Ministry to follow with detailed attention the continuation of the collaborations that are fruit of the agreements between the J. Paul Getty Museum of Los Angeles that made possible a successful exhibition of the Chimera of Arezzo and a positive exchange of archeological finds that will benefit from the restoration executed by the experts of the American museum (i.e., the Getty Museum) ( Lisippo, Storia Lunga ).

75 Spagnoli/70 Currently the Getty has successful partnerships with the Museo Archeologico Nazionale in Florence, the Museo Archeologico Nazionale in Naples, and it will soon start a longterm cultural collaboration with Sicily ( Getty Museum ). Moreover, relationships between Italy and the US have been historically and politically excellent. Especially now that Italy is governed by the conservative party (PDL), which is traditionally closer to the US even if the US is now governed by the democratic party, it is likely that the Getty saga will be solved through diplomatic channels and not through an international seizure order. Therefore, it is likely that the Getty Museum will return the statue to Italy as the legal owner through a negotiation and with the help of the General Secretariat of UNESCO as a mediator (Rosenbaum, Details Confidential Agreement ) Economic Bargaining Power Unfortunately, as Merryman points out, the results of this negotiation will depend on the bargaining power of the two parties. Italy and the Getty Museum will find a solution convenient for both parties by exchanging artworks as they did in I also believe that because the Getty Museum is suffering from a deep deficit, it will be more vulnerable and willing to negotiate instead of totally breaking the relationship with Italy (Rosenbaum, Getty Deficit ). Indeed, on April 5, 2010, the Board of Trustees of the J. Paul Getty Trust announced the election of the former Ambassador Ronald P. Spogli as a member of the board. We are delighted to welcome Ron Spogli to the Getty," said Louise Bryson, chair, on behalf of the entire Getty Board of Trustees. "Ron brings substantial experience in global affairs, recognized leadership in Italy where we look forward to strengthening particularly meaningful partnerships, a distinguished record of

76 Spagnoli/71 financial acumen and strong support for research and higher education." ( The J. Paul Getty Trust ). The American press has provided additional pressure which may help encourage the Getty to reach an accommodation by criticizing the Museum for its involvement in several recent cases of illicit appropriation (McMahon). The Los Angeles Times, for example, is deeply involved in the collection of pages of memos showing that the museum staff was complicit in the crimes of illicit appropriation of the artworks (McMahon). However, these are all only potential outcomes since the Corte di Cassazione, still has to declare its final decision, which will result in the seizure, or not, of the Lysippus statue and therefore its return, or not, to Italy. It is also possible that if the Italian Supreme Court pronounces Italy to be the legal owner, at that point Greece will start claiming a cultural ownership of the statue. This would open up another negotiating table between Greece and Italy. However, since in forty-six years Greece has never claimed a right of ownership to the Lysippus statue, I believe that it will not start a legal battle today when it is facing more significant economic problems (Felch, Italian Judge Order ). In fact, Greece has a huge debt, a large deficit, is struggling with high unemployment, and is asking for aid from the European countries (Castle and Ewing). Therefore, the outcome that Greece will claim ownership on the Lysippus statue is very unlikely even if it should be the right thing to do Chapter Summary This chapter analyzes the famous saga on cultural property between Italy and the Getty Museum on the Greek statue discovered in the Adriatic Sea in 1974 and bought by

77 Spagnoli/72 the American Museum in 1974 (the Italy v. J. Paul Getty Museum case). In particular it analyzes the history of the case, its legal jurisdiction, and the motivations of both parties. In summary, the Italian Judge Mussoni claims the lack of good faith and the negligence of the Getty Trust members at the time of the acquisition, and the cultural interest of Italy for the statue. In particular, for Judge Mussoni the Getty Museum cannot claim ownership of the statue since it does not have a proper acquisition title; Italy is the legal owner because the bronze was found in its waters, but even if it were not found in Italian waters, it was found by an Italian ship; and since the J. Paul Getty Museum is illegally keeping the statue without any official title, the statue needs to go back to its place of origin. For all these reasons in fact Judge Mussoni ordered on February 2010 the seizure of the statue and its immediate repatriation to Italy. This study also analyzes the motivations of the Getty defenders, according to whom the Getty Museum was operating in good faith and applied due diligence at the time of purchase. It completely trusted the prestigious board of the vendor Artemis. Also, the museum bought the statue and exposed it immediately after the contract without hiding anything for more than 40 years. Since it has been in the museum s possession for more than 20 years, the legal owner is the Getty Museum for the law of usucapio. This case clearly shows the approach of Italy (as a source-nation) toward cultural property nationalism in contrast with the position of the Getty Museum which favors the circulation and therefore cultural property internationalism. It also shows that the involvement of governments and domestic courts complicates the situation without providing any prompt solution for the case. However, this analysis pointed out that although the legal restitution of the statue to Italy is likely, affirming that the statue is

78 Spagnoli/73 cultural property and part of the heritage of Italy is a different and more complicated issue. In conclusion, even if the Getty Museum returns the statue to the city of Fano, the cultural and ethical owner is Greece because Lysippus was a Greek sculptor and the statue was erected and admired in Greece before it was transported on the Roman ship. Furthermore, the evidence that the statue was found in Italian territory is weak, the Lysippus statue has never been seen in Italy, and we don t have any evidence of how the Romans received the statue as a gift, an object legally bought or exchanged, or maybe even stolen.

79 Chapter 5 Findings, Alternatives, and Implications This last chapter explores the findings from this research study and proposes alternatives to the repatriation of cultural properties to source nations. It also proposes that arts administrators act as mediators in international negotiations on cultural property. With the arts administrators professional competence, museums could cut costs of endless legal battles and promote cultural property circulation and internationalism. In what follows, first the research findings are summarized, and then alternatives for more reasonable and fair solutions to cultural property disputes, and the implications for arts administrators, are outlined. Finally, the conclusion of the study is included at the end of this chapter. 5.1 Research Findings First of all, it is important to highlight the peculiarity of the Italy v. J. Paul Getty Museum case, which lies in the fact that Italy is not even the source nation of the statue at the center of the legal battle since the statue was forged by Lysippus, a Greek sculptor. The literature review stressed that generally the source nations favor cultural property nationalism because they consider themselves the owners of the artworks. This happened in the Elgin Marbles and in the Teotihuacan Mural cases when Greece and Mexico, respectively, claimed the restitution of the Greek marbles and the Mexican murals, and it is happening also in other international cases. The difference in the Italy v. J. Paul Getty Museum case, however, is that Italy claims the seizure and the restitution of a Greek statue. This is the first time that a country is claiming the restitution of the cultural property of another country. Therefore, as Professor Gaito explained in my interview with him, since the statue was found in waters closer to the former Yugoslavia

80 Spagnoli/75 than Italy, the claims might even multiply and complicate the situation further (Gaito Interview). Greece, in my opinion, is the only country that could claim ownership of the Lysippus statue since it is the only source nation. Therefore, the most important finding of this thesis is that even if the Italian Supreme Court orders the return of the bronze statue to the city of Fano in March, 2011, the cultural and ethical owner is not Italy but Greece because Lysippus was a Greek sculptor and the statue was erected and admired in Greece before it was transported on the Roman ship. Furthermore, the evidence that the statue was found in Italian territory is weak; Lysippus s statue has never been seen in Italy, and as Professor Gaito explains we don t have any evidence of how the Romans received the statue as a gift, an object legally bought or exchanged, or maybe even stolen. This highlights an important gap in jurisprudence: legal and cultural properties do not always coincide. In fact, my study has shown that domestic courts are not the right judges to rule on cultural property litigations. Every time they are involved they worsen the situation. First of all, they are biased and favor the nation that they represent. Second, the solution of the dispute becomes too protracted and expensive for both parties, as in the Italy v. J. Paul Getty Museum case. In the Literature Review chapter I have analyzed an example of a case that was solved without the intervention of domestic courts: the Young Memorial Museum in San Francisco was able to negotiate a joint custody arrangement with Mexico without the involvement of courts. However, in the Italy v. J. Paul Getty Museum case, the Italian Supreme Court might soon (in March 2011) proclaim Italy as the legal owner because the bronze was found in its waters (or even if it was not found in Italian waters, it was found by an Italian ship), and since the J. Paul

81 Spagnoli/76 Getty Museum is illegally keeping the statue without any official title, the court might order the statue to go back to Italy. Such a judgment would reflect only the legal and not the cultural aspect of the statue. Moreover, this judgment does not even have any official consequence in California and could be completely ignored by the Getty Museum, resulting in a waste of time and resources for both parties involved. In all the documents related to the Italy v. J. Paul Getty Museum case that I have analyzed, Greece is never mentioned as the cultural owner of the bronze statue. For these reasons domestic courts are not the most appropriate courts to judge international cultural property litigations. Even so, the reality is that international organizations, like UNESCO, can intervene only after the domestic courts have proclaimed their sentences. I agree that the only organization able to solve international litigation should be an international one like UNESCO; however, it should be allowed to intervene at an earlier stage, even before the legal jurisdiction is assigned. Moreover, the US did not ratify the UNESCO Convention of 1970 until after the Getty had acquired the statue, and the convention cannot be applied retroactively. This opens another important discussion on how to solve situations like this and the need for immediate action to provide an efficient and fair conclusion to this and other similar legal art cases. Also, my analysis pointed out that it is difficult to talk about good faith, negligence, and due diligence in previous acquisitions by museums. If today we have stricter regulations on museums, these rules cannot be applied to previous cases. What we consider negligence today was not considered so 40 years ago. The Getty Museum bought the statue in 1974 and proudly displayed it at the Getty Villa. If the Italian Supreme Court orders the return of the statue, does the Getty Museum need a

82 Spagnoli/77 reimbursement of the $3.9 million it paid for the statue, as Gaito wonders? This question opens up other important discussions for future studies. In addition, it is very difficult for the Getty Museum to defend itself in a foreign country. The first problem is that the laws are different: the Italian legal system follows Roman law, while the American follows Anglo-Saxon law. Second, the language barrier and the different cultures worsen even more the procedure and communication between parties. Third, the physical distance and the time difference between California and Pesaro make the collaboration between parties very complicated. To facilitate the defense, the Getty Museum hired a team of Italian lawyers to represent the museum in the Italian courts. Therefore, the Italy v. J. Paul Getty Museum case became very expensive for the Getty Museum. The courts are in Pesaro, the statue is in California, and the Getty s defenders are in Los Angeles, New York, and Rome. The arrangements of meetings, communication, translation, and travels between California, New York, Rome, and Pesaro are very time-consuming and expensive. Chart 5.1 demonstrates the Getty Museum s defense process. Professor Gaito, professor of criminal law at the Sapienza University in Rome, is the defender responsible for the criminal procedure, while Dr. Rimini, Professor of business law at the Statale University in Milan, is the lawyer responsible for the civil law. Both of them travel to Pesaro and represent the Getty Museum in court. However, they are supported also by Dr. Eugenio Minoli, associate at Jones Day in New York, who is responsible for international law issues. These attorneys have meetings in London and web conferences (Gaito Interview).

83 Spagnoli/78 Chart 5.1 Getty Museum Legal Team Process Source: Gaito Interview It is very hard to demonstrate the costs of the Getty Museum defense in the Italy v. J. Paul Getty Museum case. However, analyzing the 990 forms that the Getty Museum publishes every year on Guidestar.com, we can study the amount of money the Museum spent in the last three years in legal fees. Chart 5.2: Getty Museum Total Expenses in Legal Fees $9,000,0000 $8,000,0000 $7,000,0000 $6,000,0000 $5,000,0000 $4,000,0000 $3,000,0000 $2,000,0000 $1,000,0000 $ $8,381, $4,818, LEGAL $1,828, Source: Department of the Treasury Internal Revenue Service. Forms 990-PD 2006, 2007, 2008

84 Spagnoli/79 Furthermore, analyzing the Getty Museum statements of activities of 2006, 2007, 2008, and 2009 that the museum publishes every year in the J. Paul Getty Trust Report, we can clearly see that the Getty Museum net assets are decreasing. In fact, from $8 billion in 2006, the assets increased to $8.9 billion in 2007, but then dropped in 2008 to $8.4 billion, and even more in 2009 when they reached $6.8 billion, with a 5% yearover-year decrease (CAGR). This negative trend is mainly driven by realized and unrealized losses from the museum financial activities (view Appendices C.1, C.2, and C.3 for complete statements of activities). In a difficult economic recession that affects not-for-profit organizations it is recommended to decrease the operating costs in order to save resources. Chart 5.3 Getty Museum Net Assets (Amounts in Thousands). Net Assets, End of Year $8,030,953 $8,879,210 $8,426,510 $6,841, Source: The J. Paul Getty Reports (2007, 2008, and 2009). It is obvious that the Getty Museum is cutting expenses, especially legal fees. This is closely related to the unfavorable economic situation, but also to the fact that it is

85 Spagnoli/80 unreasonablee to spend millions of dollars on legal fees instead of investing in a good team of arts administrators able to better manage the museum, create partnerships with other institutions, and avoid litigation on cultural property. 5.2 Alternatives to Cultural Property Repatriation In order to understand the public opinionn on repatriation of artifacts abroad, I also report in this study the results of the survey Artifacts Abroad designed by Heritage Key (Himoff). These results are important to understand the public opinion on cultural property nationalism and internationalism. In the first question, Heritagee Key asked online users if the high profile artifacts abroad, such as the Elgin Marbles, the Rosetta Stone and the Bust of Nefertiti, are ambassadorss for their ancient cultures engaging and teaching people or should they be considered hostagess since they are away from their roots and inaccessible to their own people (Himoff). Chart 5.3: Question 1: Are Artifacts Hostages or Ambassadors? Source: Heritage Key, Artifacts Abroad

86 Spagnoli/81 The results of the first question demonstrate that people agree that promotion of a culture also happens abroad. Even the director r of the Egyptian Museum in Cairo, Wafaa al-saddiq, agrees on this idea and therefore on cultural property internationalism. In an interview with the BBC he said, I have very mixed and difficult feelings when I go to a museum overseas and see alll these wonderful items taken from Egypt. The objects are giving a good example of Egyptian civilization to people in different countries so that they then come here to see the Pyramids and tombs (Himoff). We can apply the same concept to the Italy v. J. Paul Getty Museum case. If Italy has strong tourism, it is also thanks to indirect promotion of Italian culture abroad by museumss and other institutions. In the second question, Heritage Key asked: The world famous Bust of Nefertiti is the star at the recently reopened Neues Museum, Berlin, drawing millions of visitors. Should it be returned to Egypt, or is it of more value to world heritage and better offf in Berlin? Chart 5.5 Question 2: Should Nefertiti be Returned to Egypt? Source: Heritage Key, Artifacts Abroad

87 Spagnoli/82 The result of question 2 shows almost the same number of people who would like the Nefertiti to go back to Egypt, the source nation, and people who think it is of more value and better off in Berlin. This is an explicit question about cultural nationalism and internationalism. It is such a difficult topic and this is the reason why the public opinion is equally divided. returned? Question 3 asked: Do you think the artifacts at the British Museum should be Chart 5.6 Question 3: Should British Museum Return Objects? Question 3: Should British Museums Return Objects? Return None Yes, Return Some No Opinion 9% 37% 54% Source: Heritage Key, Artifacts Abroad. The majority of people answered that some of them should be returned. If this tendency toward cultural property nationalism keeps rising, then the most famous museums of the world will start returning antiquities (including the Getty Museum) to the source nations. In fact, Zahi Hawass, an Egyptian archaeologist, Egyptologist, and the Vice Minister of Culture in Egypt, has a list of artifacts that he d like to see returned to Egypt. His top

88 Spagnoli/83 five most-wanted artifacts are The Rosetta Stone and Nefertiti's bust in the British Museum and in the Museum of Berlin; the Dendera Zodiac in the Louvre; the Statue of Hemiunu (the architect of the Great Pyramid) in the Hildesheim Museum, and the Bust of Ankhhaf (architect of Khafre's Pyramid) at the Museum of Fine Arts, Boston (Hawass). The Getty Museum has 44,000 Roman and Greek artifacts. If the support for nationalism expands, the Getty Villa and several other museums might close their doors. As Professorr Gaito argued, this is completely anachronistic since we are in an era of globalization (Gaito Interview). Question 4 asked: Do you think long-term loans are a solution if repatriation is not possible?? The majority answered that loans are the solution. In fact loans are becoming a common option in this field. When no simple or conditional restitution is predicted, the parties quite often agree to the loan of assets whose restitution was requested. Chart 5.7 Question 4: Do you think long-term loans are a solution if repatriation is not a possibility??? Source: Heritage Key, Artifacts Abroad.

89 Spagnoli/84 It is very interesting to combine the results of the Heritage survey together to highlight one more time that the return of popular items from foreign museums is a very difficult issue. Chart 5.8 Heritage Key, Artifacts Abroad, Results. Artifacts Abroad: Heritage Key Survey Results 70.00% 60.00% 50.00% Goodwill? Nefertity Bust? Should British Museum Return Pieces? 40.00% 30.00% 20.00% 10.00% 35.35% 59.09% 47.24%46.23% 36.87% 54.55% 53.50% Give back or take loan? 21.50% 23% 0.00% Source: Heritage Key, Artifacts Abroad. Chart 5.8, in fact, clearly shows people s uncertainty. Reading the results of question 1, it seems that people agree that culture has no borders and promotion of a country can happen abroad as well as within its borders. Therefore, works of art, considered ambassadors of a country, should remain in the museums as promoters of their countries of origin. However, the result of question 2 shows an uncertainty whether the Nefertiti statue should return to Egypt, while the result of question 3 (the majority

90 Spagnoli/85 said the British Museum should return some objects) completely overturns the result of question 1 (the majority answered that works of art abroad are ambassadors for their countries of origin). The responses to the last question suggest yet another point of view that museums should not return the artifacts but take them as loans. In summary, the majority of people consider antique artifacts as ambassadors of the source nations but do not know if they need to be returned. However, the majority agree that there should be more alternatives to repatriation, such as loans (53%) or other (23%) Loans The question is: what can be the alternative to repatriation? After analyzing the most important cases on cultural property and studying the results of the Artifact Abroad survey, I agree that a secured loan could be a solution. In the Italy v. the J. Paul Getty Museum case, for example, if the Italian Supreme Court proclaims Fano as the legal owner of the statue, the Getty Museum could keep the statue by paying a fee in exchange, acknowledging that the ownership of the statue is Italian. This could be a solution to the repatriation of the statue, and it could be just temporary until international organizations consider the repatriation necessary. Moreover, if we consider how badly important archeological sites are preserved in Italy, we should not even allow any form of repatriation to this country and should really support alternatives. In particular, considering the condition of Pompei, we can see how poorly the Italian government is protecting the archeological site. In fact, several walls of this iconic cultural and archeological landmark have been falling to the ground in recent years. The government of Italy keeps cutting funds to the Ministry of Cultural Heritage and Activities and therefore there is no money to guarantee the

91 Spagnoli/86 minimum preservation to national treasures. How can a domestic court order the seizure and the return of a statue to a country that is not even able to protect its existing resources? Gaito, in fact, in the interview says he is convinced that the statue by Lysippus, if returned to Italy, would be irretrievably ruined (Gaito interview). However, if Italy and the Getty agreed to a loan, the statue would be preserved and there would be a mutual benefit: Fano would receive money in exchange that would help its economy, and the Getty would keep the statue, which has been a major attraction of the museum in Malibu since 1974, promoting at the same time the city of Fano Reproduction of the Cultural Property Another alternative could be the reproduction of the artifacts. With new technologies it is today almost impossible to see the difference between originals and copies. For example, the doors of the Baptistery in Florence that hundreds of tourists admire every day are beautiful copies. The original doors made by Ghiberti were removed to protect them from the effects of pollution and acid rain and have been beautifully restored; the originals are now on display in the Museo dell'opera of the Dome of Florence. Therefore, anytime the integrity of a cultural property is not completely guaranteed by the source nation, the repatriation should not be even considered; instead, a reproduction of the artifact should be promoted as an alternative. In the Italy v. J. Paul Getty Museum case, Professor Alberti reported that the statue will be placed at the center of the piazza of the port of Fano. I firmly support internationalism and I argue that if the statue were to be damaged by pollution or other means, it would be a loss for humanity as a whole and not only for the city of Fano. It is instead much better that the statue remain at the Getty Villa where it is kept and

92 Spagnoli/87 protected, guaranteeing the best status, and a copy placed in Fano. Additionally, repatriation should be totally excluded anytime there is not even a guarantee of a stable political situation. For example, how can the Nefertiti statue be returned to Egypt, a country where there is no stable political situation? Indeed, the current political condition in Egypt, after President Mubarak s resignation, is critical and chaotic. Looters are invading the Museum of Cairo and other important archeological sites, opening tombs and stealing all kind of national cultural property (i.e., the wooden statue of Tutankhamen). In this situation, how can the Nefertiti statue be returned to its country of origin? The objective is to protect cultural property, and returning it to Egypt means putting it at a higher risk of deterioration. The Egyptian Museum of Cairo should have instead a copy of the bust of Nefertiti while the Museum of Berlin should keep the original because it is the best country at the moment able to guarantee a secure status Mutual Agreement In the case of the Teotihuacan Murals, I explained how the Museum of San Francisco and the country of Mexico reached a mutual agreement. Basically the museum agreed to return to the Institute of Mexico fifty percent of the murals which were donated by way of Mr. Wagner s testamentary legacy. The institute will be responsible for the cost of packing and shipping the murals that will be returned. The selection of the murals to be returned to the institute shall be made by the museum in accordance with the principles inserted in the UNESCO report and in consultation with representatives of the institute. In addition, the museum agrees to pay the expenses of the restoration of the murals and the living expenses of the experts who will be selected by the institute for travel to San Francisco for the restoration work (Merryman and Else, ).

93 Spagnoli/88 This is a great example of a case where there were multiple artifacts and it was possible to divide them between parties. Unfortunately, in the battle between Italy and the Getty Museum this alternative cannot be considered since there is only one object. However, a different agreement could always been taken, but it should consider other issues such as costs for restoration or copyright Promotion of the Source Nation If the reason why the city of Fano is requesting the return of the Lysippus statue to Italy is only economic, then the two parties could agree on a mutual promotion without returning the statue to Italy. The Getty Villa could promote the city of Fano and its tourism by placing photos and videos in the same room where the Lysippus statue is displayed. In this way it would encourage tourists to go and visit Fano. In addition, every time the Getty bronze would be mentioned in the Getty printed publications, information about Fano should be inserted. In this way cultural promotion of Italy could be reinforced from the museum abroad Financial Reimbursement Another alternative to avoid repatriation could be that the museum where the artifact is located reimburses to the source nation part or the entire amount of the admission ticket. In this way there would be a mutual benefit for both parties. In a case where there is no entrance fee, as at the Getty Villa, there could always be another way of reimbursement. Even if admission at the Getty Villa is free, it does not mean that the Getty does not get any advantage from having the bronze statue displayed in the museum. It is still a major attraction of the museum, and the amount of advantage could be quantified and partially transferred to Fano. Of course, in the reimbursement all the

94 Spagnoli/89 issues related to copyrights are also included. In fact, a percentage of revenues from printed or online publication that involves the statue of Lysippus should be transferred to Fano. 5.3 Implications for Arts Administrators Both the Italian and the international press are following very closely the legal battle between Italy and the Getty Museum on the Lysippus bronze because they are aware of the consequences of the final judgment on the entire museum system. If the Italian Supreme Court confirms the seizure and the return of the statue to Italy, then we might see the beginning of an endless process that could result in unfair restitutions. Why are the archeological items brought by the Romans in the past still in Italy? Do we start returning every artwork to its own country of origin? Aren t these antiquities already naturalized wonders Gaito. This sentence could contaminate other pending causes and produce a domino effect. In order to avoid cultural property nationalism and instead promote cultural property internationalism, museums need more professional and competent art administrators. Since we have seen that the worst cases are the ones where domestic courts and the international press were involved, there is a strong need for negotiation at early stages of conflict. This implicates the involvement of museum administrators, who in my opinion are the only ones able to solve cultural property disputes before they get further complicated. First of all, directors of museums should increase international partnerships. If networking between museums were to become stronger, international battles would automatically decrease. I have analyzed in Chapter 2 the Teotihuacan Murals case, which was resolved by cooperation between museum directors, curators

95 Spagnoli/90 and conservators instead of the involvement of governments and politicians. Arts administrators should avoid endless and complex international litigation, not only for the museums reputation, but also for economic reasons. The Teotihuacan Murals case should be considered the learning case and should be adopted as a model, and not the Italy v. the J. Paul Getty Museum case which instead should be ignored. I really appreciate the effort of the Getty Museum s board in trying to negotiate with Italy. In fact, it recently elected the former ambassador of Italy to the USA to the board of directors of the museum. This is a great effort to solve the case with a diplomatic negotiation. However, I think that it is too late now for a negotiation; and if it is not too late, then it is dangerous because the most economically powerful country will have more bargaining power in the negotiation. The election of the ambassador to the board should have been done years ago. If a museum displays several artifacts from a specific country, then it should have on its board somebody able to negotiate with the source nation. We have seen how many Roman and Greek artifacts the Getty Museum displays at the Getty Villa. Well, this implies that the museum should have a strong relationship with Italy and Greece to avoid requests of cultural property repatriation. The Getty Museum should have professional managers able to mediate with other Italian and Greek museums. The Getty, for example, should hire art managers at the Getty Museum who are able to speak Italian or Greek and able to understand Italian and Greek cultures and the British Museum should have managers able to speak Arabic. Additionally, arts administrators should be trained and educated in international negotiations in graduate school. They should become the ambassadors not only of nonprofit organizations but also of cultural property. Only with professional and

96 Spagnoli/91 diplomatic arts administrators, can cultural property protection and internationalism become possible. 5.4 Study Conclusion Through the analysis of the legal case between Italy and the Getty Museum on the statue attributed to Lysippus, this thesis has shown the complexity and the uncertainty surrounding cultural property regulation, especially in international disputes. It has also shown that on one side there are the source nations (like Italy) that favor cultural property nationalism because they consider themselves the owners and therefore advocate the repatriation of artifacts. On the other side are museums and dealers that promote cultural property internationalism and therefore favor the circulation of cultural property rather than its repatriation. Above all there is UNESCO, which is an ambiguous organization because its statute declares that it is on the side of cultural property internationalism, but in real life it mostly protects the source nations, allowing their domestic courts to rule on international disputes (as is happening in the Italy v. J. Paul Getty Museum case). Endless and expensive trials involving many people are particularly onerous, especially in a period of economic recession. Moreover, sentences proclaimed by domestic courts do not have any significance in other countries because those countries are regulated by different legal systems. This situation results in a waste of time and money for each party. For these reasons I argue that domestic courts are not appropriate to judge on cultural property because they are biased and because they do not have international jurisdiction. They consider only the legal and not the cultural ownership of an artifact; the cultural ownership should be regulated by international conventions. The

97 Spagnoli/92 mechanism that involves the courts of the source nations in ruling on international disputes should be avoided up front before it is too late to change, as happened in the Italy v. J. Paul Getty Museum case. As Professor Gaito explained during the interview in Rome, the Italy v. J. Paul Getty Museum case could become a learning case and affect other pending disputes (Gaito interview). I argue that this case is a learning case in how not to handle these disputes. It is a terrible example to follow because it involves politicians, governments, international press, a domestic court, and lawyers, which all together make the achievement of a quick solution impossible. The Teotihuacan Mural case is instead a learning example to be followed as a model because it involved only arts administrators. By themselves and in a short period of time museum directors, curators and conservators were able to reach a beneficial deal for both parties. This case not only proves that there are alternatives to repatriation of cultural property, but also that there are alternatives to the involvement of domestic courts in solving cultural property battles. Therefore, alternative methods of dispute resolution might be preferred to the classical judicial means. However, the Teotihuacan Mural negotiation was a success only because it bypassed politicians and governments. In fact, it is extremely dangerous when diplomatic negotiations are left to governments because the one with the strongest economic bargaining power might get the most favorable deal. We should always keep in mind that the majority of cultural property objects are located in the most economically powerful countries (US, England, Germany) while the source nations are usually poor countries with low bargaining power. Perhaps this is also the reason why Greece is not claiming ownership of the Lysippus statue. Because of these realities, I argue that in the case of an international

98 Spagnoli/93 dispute over cultural property arts administrators should negotiate impartially, limiting the museum s expenses and the involvement of governments and politicians. Beyond the issues of ownership, I argue that it is anachronistic in an era of globalization for source nations to request the repatriation of their cultural property. Artifacts abroad should be considered ambassadors for their source countries and should be protected for humanity as a whole. In fact, if cultural objects are damaged, it is a loss for humanity because they have a value for all humankind.

99 Spagnoli/94 Works Cited Archeological Institute of America. Resolutions on the Importation of Antiquities. Archaeological.org. Archeological Institute of America. 30 December Web. October Blakey, Claire. A Cultural Homecoming? Restitution Demands from the Italian Ministry of Culture to Two American Museums. Museological Review 14 (2010): University of Leicester. Print. Brand, Michael. Italy and the Getty Must Find Common Ground. Getty.edu. The Getty, 28 Nov Web. 5 April Burnham, Bonnie. The Protection of Cultural Property: Handbook of National Legislations. Paris: International Council of Museums. Pp Print. Castle, Stephen, and Jack Ewing. Europe Unifies to Assist Greece With Line of Aid. Nytimes.com. New York Times, 11 April Web. 13 April Cornu, Marie, and Marc-André Renold. New Developments in the Restitution of Cultural Property: Alternative Means of Dispute Resolution. International Journal of Cultural Property. 17: Print Cuno, James. Who owns Antiquity? Museums and the Battle Over Our Ancient Heritage. Princeton University Press. Princeton and Oxford Print. De Quincy, Quatremère, Lettres au Général Miranda sur le déplecement des monuments de l art de l Italie. Macule, Paris Print. DuBoff, Leonard D., and Christy O. King. Art Law. St. Paul, MN: Thomson West, Print.

100 Spagnoli/95 Felch, Jason. A Twist in Getty Museum's Italian Court Saga. Latimes.com. Los Angeles Times, 14 Jan Web. 13 April Italian Judge Orders Statue be Seized from Getty. Latimes.com. Los Angeles Times, 12 Feb Web. 10 March The Amazing Catch They Let Slip Away. Latimes.com. Los Angeles Times, 11 March Web. 2 April Gaito, Alfredo. Interview by Simona Spagnoli. 2 July, Audiocassette. Getty Appeals Statue Seizure. Ansa.it. Ansa, 17 Feb Web. 11 March Getty Museum and Museo Archeologico Nazionale Announce Long-term Cultural Collaboration. Artdaily.org. Artdaily, 24 March Web. 12 April Getty to Send 40 Art Works Back to Italy. Reuters.com. Reuters, 8 Feb Mp3 file. April Giambartolomei, Alessandro. Torna a casa, Lisippo1 Interview with Alberto Berardi. Scirocco 16 (2006): Alessandro Giambartolomei Editore. Print. Gibbon Fitz, Kate. Who Owns the Past? Cultural Policy, Cultural Property, and Law. Rutgers University Press. New Brunswick, New Jersey, and London Print. Greenfield, Jeanette. The Return of Cultural Treasures. Cambridge University Press. Cambridge Print. Himoff, Jon. UNESCO Heritage Sites Versus Museums: Survey Results for Artefacts Abroad. heritage-key.com. 24 November Web. 4 January Hoffman, Barbara. Art and Cultural Heritage. Law, Policy and Practice. Cambridge University Press. Cambridge, Massachusetts Print.

101 Spagnoli/96 Hoving, Thomas, Letter from Mr. Hoving to Mr. Getty Describing Getty s Legal Conditions. Scribd.com. Scribd, 26 June Web. 2 Aprile Il Getty Bronze, un Giallo Archeologico. Archeomedia.it. ArcheoMedia, 20 Nov Pesaro, Italy. Web. 12 March International Council of Museums (ICOM). Code of Ethics for Museums.. International Journal of Cultural Property, 13, pp doi: /s x Print ICOM Mission Web. 10 March Print. Italian Civil Code. Royal Decree of 16 March 1942, No Print. Italian Code of the Cultural Assets and Landscape (Urbani Code), Legislative Decree of 22 Jan. 2004, No Print. Italian Code of Navigation. Royal Decree of 30 March No Print. Italian Legislative Decree N. 218/95, Reform on the International Private Law. 31 May Print. Italian Penal Code, Royal Decree of 14 September Print. Italy v. J. Paul Getty Museum, N. 2042/07/ R.G.N.R. N. 3357/07 R.G.I.P. Court House of Pesaro, Italy. Print. Jaskol, Julie. Statement about the ruling in Pesaro on the Getty Bronze. Getty.edu. The Getty, 11 Feb Web. 2 April Kaufman, S. Roy. Art Law Handbook. Aspen Law & Business. Aspen Publisher, Inc. Gaithersburg. New York Print. Lisippo, Dopo la Confisca Ora si Punta alla Restituzione. Ilrestodelcarlino.it. Il Resto del Carlino 12 Feb Web. 12 April 2010.

102 Spagnoli/97 Lisippo, in Attesa dell'udienza Sit in Davanti al Tribunale. Ilrestodelcarlino.it. Il Resto del Carlino 14 Jan Web. 12 April Lisippo, Muore alla Festa di Capodanno Avvocato Stroncato da Infarto. Ilrestodelcarlino.it. Il Resto del Carlino 1 Jan Web. 2 April Lisippo, una Storia Lunga 46 Anni. Ilrestodelcarlino.it. Il Resto del Carlino, 11 Feb Web. 26 Feb Mattusch, Carol C. The Victorious Youth. Los Angeles: J. Paul Getty Museum Getty Museum Studies on Art, Print. McMahon, Barbara. Getty Museum knowingly bought archaeological treasures stolen from Italy, investigation claims. guardian.co.uk. The Guardian, 27 Sept Web. 6 April Merriam, B. Sharan. Qualitative Research: A Guide to Design and Implementation. Jossey Bass. San Francisco Print. Merryman, John Henry. Cultural Property Internationalism. International Journal of Cultural Property. 12: USA. Print. Merryman, John Henry and Albert E. Elsen. Law, Ethics, and the Visual Arts. Volume One. Second Edition. University of Pennsylvania Press. Philadelphia Print. Messenge, Phyllis Mauch. The Ethics of Collecting Cultural Property : Whose Culture? Whose Property? Albuquerque : University of New Mexico Press, 2nd ed Print.

103 Spagnoli/98 Patton, M. Q. Qualitative Evaluation Methods. Thousand Oaks. Sage. California Print. Pincini, Renzo. Lysippus: Support to the Regional Committee on the Inquiry of the Right of Ownership. Regione Marche.it. Press Release 17 Feb Web. 11 March < /Comunicato/tabid/229/Default.aspx?IdNews=19304> Poveledo, Elisabetta. Italy Presses Its Fight for a Statue at the Getty. nytimes.com. The New York Times, 15 Jan Web. 10 March Ritchie, Alexander MacKintosh. Victorious Youth in Peril: Analyzing Arguments Used in Cultural Property Disputes to Resolve the Case of the Getty Bronze. Pepperdine Dispute Resolution Law Journal 9 (2009): 325. Print. Rosenbaum, Lee. Details of the Getty's "Confidential" Agreement with Italy. Artsjournal.com. Arts Journal, 31 March Web. April Getty Operating Deficit Soars: Wood Cuts Jobs, Goats Cut Underbrush. Artsjournal.com. Arts Journal, 22 May Web. 13 April The Getty Museum. Italian Ministry of Assets and Cultural Activities. Press Release 12 Feb Web. March < MiBAC/Contenuti/MibacUnif/Comunicati/visualizza_asset.html?id=66293&pag ename=129>. United Nations Educational, Scientific and Cultural Organization (UNESCO). Convention on the Means of Prohibiting and Preventing the Illicit Import, Export

104 Spagnoli/99 and Transfer of Ownership of Cultural Property. Paris: UNESCO, November 14, 1970, 823 U.N.T.S Print. UNESCO and UNIDROIT. Cooperation in the fight against illicit traffic. Paris: UNESCO, 24 June CLT-2005/Conf/803/2. Print. International Institute for the Unification of Private Law (UNIDROIT). Convention on Stolen or Illegally Exported Cultural Objects. Rome: UNDROIT 24 June Print. The J. Paul Getty Trust. The J. Paul Getty Trust 2007 Report. Web. 4 January < The J. Paul Getty Trust. The J. Paul Getty Trust 2008 Report. Web. 4 January < The J. Paul Getty Trust. The J. Paul Getty Trust 2010 Report. Web. 4 January < USA, US Convention on Cultural Property Implementation Act (CCPIA). Public Law [H.R. 4566], 96 Stat Print. U.S.A and Italy, U.S. Protection of Archaeological Material Representing the Pre- Classical, Classical and Imperial Roman Periods. Washington: 19 January Web. 11 March < U.S.A and Mexico. Treaty of Cooperation between the United Mexican States providing for the Recovery and Return of Stolen Archeological, Historical and Cultural Properties. 17 July 1970, in force 24 March 1971, 791 UNTS 313; 22 USTS 494; (1970) 9 ILM 1028, 191, 192. Mexico City. Print.

105 Spagnoli/100 Wittlin, Alma Stephanie. Museum in Search of a Usable Future. MIT Press. Boston, Massachusetts Print. Yin, Robert K. Case Study Research: Design and Methods. Sage Publications. Beverly Hills, CA Print.

106 Appendices

107 Spagnoli/102 Appendix A - Interview Script with Alfredo Gaito, Professor of Criminal Law, La Sapienza University of Rome, Defender of the Getty Museum. Interview Conducted by Simona Spagnoli in Rome, Italy on July 2, Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Prof. Gaito, what will happen if the judge confirms the appeal verdict and orders the statue to be seized and returned to Fano? The enforcement execution pertains to the public prosecutor in Italy. In Italy we have no news of the seizure order. I personally doubt that an order from the Italian public prosecutor, without rogatory letters and especially without proof, would be directly enforceable in the United States. In this case the committing of a crime has never been ascertained. What will happen if it is to return to Italy? Will UNESCO be taken to task? The 1970 UNESCO Treaty does not apply since the United States ratified it after Getty purchased the statue. And the UNIDROIT? The United States never ratified it; here there is an overlapping of different disciplines. In American civil law there is a particular limitation regarding acquisition of archaeological heritage: because those from Central American countries of pre-columbian age have a system of special protection. Otherwise I would say that possession equals entitlement according to California law. In fact I read you argued on [the bases of] usucaption (acquisitive prescription). More or less. But Dr. Mussoni declared [the statue] an unavailable asset of the state and thus it is a res extra commercium. However, I am not convinced it is an unavailable asset of the state.

108 Spagnoli/103 Simona Spagnoli: this point? Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: So you will argue in the Cassazione (Italian Supreme Court) on Of course. There are registered acts where I affirm these things. It cannot be an unavailable asset because first of all it is not of Italian but Greek origin. If we wish to be entirely coherent it could perhaps be a Greek unavailable asset that was stolen by the Romans when they stripped the Rigi stadium. It was found in non Italian waters. But this has not been established. Yes, it was established with a ruling. In fact, the court of Pesaro adds something else: it became Italian because, when the Italian fishermen found it, they carried it to the Fano seashore without declaring it to Italian authorities. And then it was a ship flying the Italian flag. This has rather little importance. Here there are two profiles: one regarding Italian navigation law and one regarding the criminal system; because all wrecks pulled on board by Italian vessels are not subject to customs duties or state rights and belong to the fisherman. We should clarify the concept of wrecks; because maybe even a damaged statue should be considered a wreck. So if, in principle, those who find something in the sea can legitimately take it, I wonder why bringing it to shore without declaring it to the police would transform it into Italian state property. It all depends on the exact fulfillment of a bureaucratic aspect. This satisfies me very little. If the fishermen had been educated, if they had known the law, they would have declared it, would not have had to pay taxes, and they would have been entitled to keep and sell the statue. Pirani is therefore wrong. Right. But ignorance of the penal law cannot affect the legal status of property. I think this is the point. However the fact remains that the Getty Museum has no purchase contract. The Getty Museum has a purchase contract by Artemis.

109 Spagnoli/104 Simona Spagnoli: Yes, but the purchase act before Artemis? Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: There are traces of Artemis purchase of the statue before the sale to the Getty Museum, in a couple of letters, I think by attorney Grimaldi. But if you go to a car dealer, Fiat in Italy, Chrysler for you there, and buy a car that is 100% guaranteed to be inspected, serviced, perfect; wouldn t you rely on the name credibility of those who sell it to you? If you checked who made up the consortium Artemis you might be surprised; because it included the Prime Minister of Belgium, and billionaires of the time. Artemis was a company that is still publicly traded. Mr. Getty, however, had doubts, as did Mr. Hoving of the Metropolitan Museum. Well, you have to read a few documents, because Getty s doubts were about the asking price not the origin; since the price, strangely had gone up. Basically, Getty bypassed the then director of the Metropolitan Museum and was able to pay a lower price than the one expected by Hoving. I believe Hoving had added a fee for his mediation to the price of the statue. Getty went around him and paid less; hence a certain resentment by Hoving, who began to speak ill of Getty. What I personally think is that declaring that Italy is the legal owner is one thing, but to say that Italy is also the cultural owner... Sounds wrong. Sounds wrong. I think the cultural owner is Greece, since, even if the 1970 UNESCO Convention does not apply, according to Article 4 Italy cannot appeal based on anything since the source and the waters are unknown... Why do you think in 46 years Greece has never been interested in this case?

110 Spagnoli/105 Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: And I do not see why it should be. Why only in the Lysippus statue and not in everything else? The press is following this case closely because it will produce a domino effect on other pending cases. And anyway if the representatives of the Getty Museum had received a real criminal proceeding with investigations, a formal accusation, first instance proceedings, the possibility of checks and balances in the appeal process, [and] finally, as [it is] for everyone in Italy, the Supreme Court - it would have been different; even though I believe that after 40 years such an assessment is almost impossible. But things change: the assumption was made that the statue was of [Italian] origin, that it was kept in bad conditions. Here an execution incident was made. For an offense that should have involved a collegial court a monocratic body has given a verdict. And this is already an alteration of due process rules. The predicate offense, in order to allow seizure, has never been sanctioned with a sentence and a punishment. For that crime, not attributable to any representative of the Getty Museum, a procedure was initiated against the fishermen of Fano and the restorers of Gubbio (the Barbetti brothers)! But there are an acquittal, which has become final, and a measure of dismissal per prescription for the death of the accused. Since seizure, like it or not, nowadays is a criminal sanction, it cannot be applied if there is no conviction. But here that measure of dismissal against the fishermen has almost been made into the equivalent of a conviction. So procedurally things clash even more. Then in the Supreme Court you will argue on this point? This, too, of course. But in the Supreme Court we will not have the right to argue; and this is another bottleneck of the contradictory, because coming from an incident of execution there is no public debate. This too seems to me a paradox. This is not a negotiation, an agreement on a sentence. I believe that the public is entitled to know, to check the tones of a testimony, the atmosphere of a courtroom hearing.

111 Spagnoli/106 Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: The Cento Citta (One Hundred Cities) of Fano want a statue they never seen except in pictures or if they visited to the Getty Museum. And then I think it would be irretrievably ruined. Indeed! The Getty Villa is modeled after a first-century Roman country house, the Villa dei Papiri in Herculaneum. It is an exact reproduction of a villa, the temperature is appropriate. If one wants to promote Italian culture, it can be done from Los Angeles as well... or maybe even in a better way! How much influence does politic have? This whole story began with Rutelli wanting 52 statues. Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: I do not know really. Reading the press we can infer that Mr. Bondi is trying to meet the U.S. halfway, while Rutelli was against the NATO base in Vicenza, and all this was an attack on the United States; since, being a leftist government, the message was: give us back the statues whereas Bondi is more pro-american. I defend myself in the trial. Outside the trial I know nothing. As for the international press, how much does it affect the case? There are many articles on this process. The Los Angeles Times, for example, attacks the Getty Museum for the illegal proceedings. In your opinion, what will be the outcome of this case? Do you think the statue will remain at the Getty Museum? According to the papers of this trial I would say yes. What weight these conditioning factors might have, I have absolutely no idea. Suppose the Supreme Court confirms the seizure order... There will be the problem of enforcing it abroad. What will happen next? Probably it will take a civil action staged in California. Ultimately, this is a civil execution in criminal matters.

112 Spagnoli/107 Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: An international authority is necessary and UNESCO could act as a mediator since the Italian ruling has no value abroad. This is a learning case; it is absolutely the first case like this ever. It is also possible that if it were to return to Italy, Greece might come into play later. The statue was found in waters closer to the former Yugoslavia than Italy, so the claims could multiply. And then I wonder: one thing is cultural property; the dwelling place is something else. Taking note of your convictions, of the environmental habitat that has been rebuilt in Malibu, I wonder, wouldn t it be sufficient to recognize the statue of Italian/Croatian/most likely Greek paternity and leave it there where it has been for the last 40 years? Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: In my opinion the economy is behind it all. Fano thinks [the statue] will be a tourist attraction. The beaches will fill up. Surely the Cento Citta (One Hundred Cities) see only profit from this statue. Fano is getting so much publicity from this trial. Probably. However, this is a very interesting case. Recently, the Getty Museum also elected the former Italian ambassador in NY to its Board of Directors. In this way, it is trying to mend relations with Italy; because if it breaks off relations with Italy the Getty Museum will close, given that it has many items of Roman and Greek origin and also because it is in deficit. If the statue of Lysippus was considered of such importance, [Italy] should not have accepted a partial restitution; from the Euphronios Krater to other pieces. The Italian authorities having accepted, at the time, that restitution coupled with Getty s clear rejection [to return the statue]. The principle of reliance has always been respected in international relations. I mean, that agreement should have fallen through. Accepting it also meant a more or less implicit acceptance of Getty s position. How have you been working with the Getty [Museum]?

113 Spagnoli/108 Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Once we met in London, almost half way; otherwise mostly via Skype. Do you speak English? Above all, I understand it. And what about the Studio in New York? It is attorney Minoli in New York City. And who goes to Pesaro? Attorney Rimini from Milan, who is Professor of Commercial Law at the University of Milan, and I. He, is following the civil case, which is less complicated than my matters of criminal procedure. But if it had been a European country, would there be a difference? Should the EU carry out Italian rulings? Suppose it was not the United States but France. France is the only country, which since July 1, implements decisions of other EU countries, but is a recent law. Italy does not have this legislation yet so there would have been harmonization problems. So UNESCO would not have been needed then? On the contrary, I believe it would have. With other countries relations would have been exactly the same, so legal assistance [would have been needed] to enforce the seizure and obtain the transfer. At the Louvre and the British Museum there are all those Egyptian finds, Italian, Russian things stolen by Napoleon. Either there is a worldwide rebalancing or else I do not understand why get upset over that one statue. Simona Spagnoli: Maybe because they want to see the purchase certificates. Alfredo Gaito: It would have been very easy to make a false contract after 40 years. If anything, this shows that the Getty Museum meant well.

114 Spagnoli/109 Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Yes, but museums have a code of ethics that must be applied. For each purchase of each object the museum must make every effort to determine its origin. True, but it began to be applied only a couple of years after the statue was purchased. The same Marion True, who was one of the curators and who also confessed to various things, admitted that she was the one who, after buying Lisippo [statue], introduced the use of tabs. So something is not right. On the other hand [it is] with the unfolding of mistakes [that] improvements are introduced. The fact that this item was purchased earlier [and that] all of the conditions we have now are missing, is not in itself proof of illegal acquisition; things worked differently before. Unfortunately, I rather see the chronological length of the negotiations and the scruples of older Getty, who had given provision to establish provenance; since I do not believe Getty s employees have ever dared to contradict him. I did not know him personally but he was portrayed to me as a determined, strong and unwavering man; faced with that directive: to determine the source, the source has been determined. On the other hand there was the irrevocable ruling of the court of Rome, which has not been touched by Dr. Mussoni; it established that the statue was not Italian. Perhaps, a mistake was made, but it is a non-recoverable error. That statement counts today as the procedural truth and it is binding hereinafter for the case. It is also very interesting to see how many different names the statue has: The Victorious Youth, The Getty Bronze, The Lysippus Statue, and The Athlete of Fano. It has about 5-6 names showing the problem of the statue s cultural ownership. Besides, the cut off legs show the statue was erected in Greece... They were stadium statues. The statue is of Greek origin. If we think about the origin, it is possible the statue was stolen by the Romans... It is unlikely they purchased it. I wonder why the ship sank in the Adriatic Sea, which is a calm sea without storms. Are there specific dates? When will the Supreme Court meet?

115 Spagnoli/110 Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: Simona Spagnoli: Alfredo Gaito: There are no dates yet; the appeal is with the Supreme Court. It has been assigned to a substitute Attorney General who will write the indictment. This gentleman is Dot. Monetti. Until he files his written requests, the hearing cannot be set. Once the hearing is set we have the right to take copies of the Supreme Court prosecutor s requests and we can write a contradictory statement with new issues and reply notes. But this one too would be a shorthanded action given that the Attorney General may not respond to our findings since the law does not require him to do so. I'm looking for other cases like this one. Judicially I d tend to exclude it. That there might have been a few agreements is another matter. For example, it seems Berlusconi has agreed to return to Gheddafy a column that had been brought from Libya to Italy; the same with Somalia. The anomaly, if anything, is this one: antiques brought to Italy during and between the First and Second World Wars that is in the 20s were returned in recent times; however the finds brought to Italy by the ancient Romans are still here. So, should everything go back? I guess those things are naturalized. Culture is without borders. In the age of globalization it is an anachronism. What do you think of the Getty Museums negligence? Look, I do not know whether it s a matter of negligence. I am not defending the Getty Museum at this time. But if I [make a] purchase from the Belgian Prime Minister, who shows me an acquittal sentence for Barbetti, which states that the property was found in international waters and is not Italian; and if he also shows me the German decree of dismissal for Hertz, the seller, and the communication from the prosecutor in Monaco of Bavaria that literally says in German: "from now on the property is freely marketable;" Than I believe the American buyer at this point... To the point that the public prosecutor at the hearing made a glaring blunder by saying that we were making a translation mistake; namely that when we said - the Republic of Monaco Prosecutor states the property is marketable - was not true. You have translated public prosecutor with the term that means lawyer - and we: no, no - and therefore it has no value because

116 Spagnoli/111 it is a statement by any old lawyer. It is on the letterhead of the public prosecutor of Monaco of Bavaria. Simona Spagnoli: Alfredo Gaito: However, neither Getty nor Artemis had ever contacted the Italian Military Police (Carabinieri.) Yes, a Colonel of the Carabinieri asked for information, but everything is explained in my pleading. But that cannot be regarded as a deterrent to giving answers. And now let's see what happens with the unauthorized restoration. In the public prosecutors records, you will find the beginning of a new prosecution for unauthorized restoration. They do not say against whom, but I think against Herzer and maybe someone in the Getty Museum who is probably dead by now. Getty bought it. Shouldn t they be entitled to some compensation as at least? Simona Spagnoli: Alfredo Gaito: However it s a fact that it is a major attraction of the Getty Villa. Than we should go see it while it s still there!

117 APPENDIX B - ILLUSTRATIONS

118 Spagnoli/113 APPENDIX B.1 Unknown Greek, B.C. Bronze 59 5/8 x 27 9/16 x 11 in. 77.AB.30

119 Spagnoli/114 APPENDIX B.2 The Getty Villa Malibu