Artists copying or quoting other artists’ works is common throughout art history. But when is a new piece too close to an existing artist’s work?
This question, and the way that AI might shift the answer to it, is at the center of a show on view through March 15 at New York’s Heft Gallery. It’s the New York solo debut of 31-year-old New York artist Kevin Esherick, who started creating art in the 2021 wave of interest in digital art, especially NFTs. Founded last year by Adam Heft Berninger, Heft Gallery, in the founder’s words, “showcases human intuition applied to systems-based art making — work shaped by rules, logic, structure, or code.”
Three pieces in the show are the subject of a cease-and-desist letter from New York’s Eastman & Eastman Attorneys, representing painter George Condo. Those works are still on the walls, but they’re now covered in black velvet, and a redacted printout of the attorney’s letter hangs next to them, to let visitors know what they’re looking at.
Esherick’s show focuses on two bodies of work. For “Homages,” he trained an AI image generator to mimic the styles of artists he admires: Beeple, Condo, Petra Cortright, Shara Hughes, Julien Nguyen, Trevor Paglen, Cindy Sherman, and Salman Toor. At the February 11 opening, meanwhile, an actor outfitted with a prosthetic mask played the role of Marina Abramović in the iconic performance from her 2010 retrospective at New York’s Museum of Modern Art, “The Artist Is Present,” in which she sat in the museum’s atrium and stared into the eyes of visitors.
Esherick wrote to the artists ahead of time, informing them of the show and letting them know that he had created what he thought to be credible new artworks that could feel “at home in [their] oeuvre.” He gave the artists the option, if they felt the new work seemed to them like it could actually be their own, to sign the pieces, thus appropriating his adaptations, and collect his proceeds from their sale.
Most of the artists were receptive, said Esherick in a phone interview. “It’s an honor,” Paglen told ARTnews via text. Beeple is even planning to help support an auction of the piece created in his style, says Esherick.
“How does creativity stand to change under these changing techno-cultural circumstances?” said Esherick. “What happens to the artist’s hand, and to norms and laws around ownership of a style?”
Having trained an AI to create works approximating his own, Esherick has now embarked on The Artist Is Absent, a project in which, inspired by the legendary year-long performances of Taiwanese-American performance artist Tehching Hsieh, he will cede his practice to the AI for a year. “It’s capable of replacing me,” he said.
The other group of works in the show, “Ablation Studies,” consists of blurry versions of artworks by artists ranging from Leonardo da Vinci and Rembrandt to Mary Cassatt and Georgia O’Keeffe. They result from submitting existing artworks into an AI, then interrupting its processing of the image. The act provides “a way of looking into the quasi-cognitive process of the model,” he said.
But it was only the three 2026 paintings (reviewed by ARTnews but not reproduced here) in the style of Condo, known for edgy images that portray figures in an exploded, Cubistic style, that caused any problems. Groundhog Day (After George) shows a man’s head and shoulders emerging from a grassy field; Reginald III (After George) shows a crowned king standing, holding a scepter, his robe parted to bare a fat belly; The American Pope (After George) shows the pontiff in white and red robes, a small American flag protruding from his ear.
Condo is a force in the art world, operating at a level most artists can only dream of. Audiences far beyond the art world know his work, since he created the cover art for Kanye West’s masterful 2010 album My Beautiful Dark Twisted Fantasy, hailed as among the best records of the decade. The New York Times critic Holland Cotter described his 2011 survey at New York’s New Museum as “sensational.” His auction high stands at $6.9 million, achieved at Christie’s Hong Kong in 2020 with the painting Force Field (2010). A year ago, a two-venue New York exhibition at Hauser & Wirth and Sprüth Magers featured 20 works on paper, priced as high as $1.5 million, Artnet News reported. As of November, he is jointly represented by Sprüth Magers, which has locations in Berlin, London, Los Angeles, and New York, and Skarstedt, of New York, London, and Paris. (He had been represented by the globe-spanning Hauser & Wirth since 2019.)
A letter from Condo’s attorney, dated February 10, the night before the opening, asserts that Esherick’s paintings constitute unauthorized derivative works and thus infringe on his copyright. The letter goes on to demand that Heft cease showing the works and forward to Condo any payment received for them. The firm did not respond to a request for comment.
“I see this as different from most appropriation,” said Esherick. “There’s a devotional element that reflects back to the copying of religious iconography. These technologies offer a way of occupying someone else’s view of the world.” He studied philosophy and psychology at Notre Dame before developing an app called Enlighten that was meant to serve as a “personal trainer to help people cultivate well-being and mental health,” as he described it. He went on to work as a freelance writer, but when digital art exploded in popularity in 2021 he tried his hand at it, with some success: his work has been on view at New York’s SuperRare Gallery, the Hirshhorn Museum in Washington, D.C., and the Art Institute of Chicago, per a digital catalog for the show.
“These are not derivative works,” says the artist in his defense. “They’re entirely new in a legal sense, not a derivation of a particular George Condo image.”
According to attorney and artist Alfred Steiner, speaking to ARTnews on behalf of Esherick, there aren’t specific legal precedents for this particular conflict.
“There are legal rubrics that artists might try to bring to bear to protect their signature style, like trademark law or Lanham Act claims, the crux of which is that there’s either a likelihood of confusion or a false or misleading statement in commerce,” he said. “Here, everything is properly disclosed, so it would be difficult to make that claim. The other rubric that people might try to use would be a violation of personality rights, which protect the use of a person’s name, image, or likeness.
“But,” Steiner concluded, “we would say the law is on Kevin’s side.”
Amy Adler teaches law at New York University, often focusing on matters such as copyright law and moral rights in the art world.
“At the heart of this conflict is a very interesting question about whether you can copyright style,” she said in a phone conversation. “The textbook answer is ‘no,’ but there are some nuances in the law, and there will be growing pressure on this question in light of the capacities of AI to replicate style.”
The second key question, for Adler, is whether the artist committed copyright infringement by training his AI on Condo’s work.
“Right now there is a boatload of litigation pending about when and whether training constitutes copyright infringement or whether it’s protected under the ‘fair use’ provisions of copyright law,” she said. “Very few cases have been decided. Two courts in California have so far found that as a bottom line training is protected by fair use, but they were fact-specific holdings, so there are some open questions.”
