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Call It a Draw

Earthlink Ads Look and Feel Like a Rip-Off to Local Animator Bob Sabiston

By Marc Savlov, Fri., Aug. 31, 2001

Last year, Internet portal Earthlink aired a series of commercials whose style bore a resemblance to that of Bob Sabiston, whose Flat Black animation studios produced the still above as a parody of the Earthlink ads.
Last year, Internet portal Earthlink aired a series of commercials whose style bore a resemblance to that of Bob Sabiston, whose Flat Black animation studios produced the still above as a parody of the Earthlink ads.

When Austin-based animator Bob Sabiston says he'll never consent to do another commercial as long as he lives, you get the feeling he means it. Sabiston and his company Flat Black Films are the creative force behind the highly anticipated animated film Waking Life, directed by Richard Linklater, due out this fall from Fox Searchlight. The film employs a form of proprietary software developed by Sabiston to "animate" pre-existing video images via rotoscoping, the process of drawing or painting over each frame of the film, or in this case, digital video. There's nothing new about that in and of itself, but Sabiston's software takes much of the drudgery out of the process by freeing animators to do only a small part of the laborious process by hand, with the computer software inserting the in-between work.

It's a remarkable and highly personal form of animated artistry, and one that Sabiston farmed out to some 31 other Austin animators and artists for the post-production work on Waking Life. It's exactly that spectrum of differing artistic styles and sensibilities that gives Waking Life its charming and unique feel.

Since creating his software some three years ago, Sabiston has used it sparingly on a couple of short projects -- "Snack and Drink" and the Slamdance/SXSW favorite "Roadhead" -- with partner and fellow Austin filmmaker Tommy Pallotta (High Road). Before that, the software had been used to create a series of "bumper" spots for MTV, where Sabiston toiled briefly under the aegis of then-Director of Animation John Andrews.

By all accounts, Andrews' and Sabiston's working relationship was mutually beneficial and cordial. Andrews moved on to head Los Angeles' animation house Klasky-Csupo's ad division, Class-Key Chew-Po, while Sabiston went on to head up the animation aspects of the Linklater project.

Sabiston's style is unique enough that, in December of last year, when a series of animated commercials for the Internet portal Earthlink began airing in heavy prime-time rotation on national television, he received a raft of congratulatory phone calls praising his brilliant television spot.

The only problem was Sabiston hadn't animated them.

The ads, which featured a series of "interviews" with satisfied Earthlink customers animated over the company's signature burnt-orange backgrounds, looked for all the world as though they had been created using the animator's proprietary software package, but they hadn't. They were instead crafted more or less in-house at Class-Key Chew-Po for Earthlink, who was represented by advertising heavyweight Chiat/Day, the folks behind those engaging Apple Computer ads.

What happened? And why are Bob Sabiston and John Andrews so now completely on the outs that they haven't spoken since last New Year's?

That depends on whom you talk to.

Andrews is a well-respected player in the animation field, having nursed Mike Judge's nascent Beavis and Butt-head, among other projects, to fruition back in his MTV heyday. According to Andrews, Sabiston declined the chance to direct the commercial when it was first offered to him in November of 2000, but did agree to act as a consultant, for which he would receive a $7,500 fee. Soon after, however, Sabiston called Andrews with the news that, due to time constraints evolving from post-production work on Waking Life, he wouldn't be able to consult on the Earthlink ad after all. Andrews then asked him if it would be all right for him to approximate the look of the software using his own people and a combination of Adobe Systems' After Effects and Illustrator programs. Sabiston agreed, and, according to Andrews, mentioned that he might be available to work on further Earthlink projects when his commitment to Waking Life wrapped somewhere around January of 2001.

At this point, Andrews rushed the animation into production with his own team and -- with and the contracts between Chiat/Day-Los Angeles and Earthlink already inked and the rough video footage in the can -- completed the final ad in a matter of weeks sans Sabiston.

According to Andrews, Sabiston then called him and said "I've thought it over, and I've decided not to do it." A surprised Andrews thought at first that the animator was playing a practical joke -- "I was laughing and saying 'You're kidding' -- because the spot was by that time ready to go." Andrews says he then told Sabiston that he (Andrews) had already signed a contract, the shoot was completed, and "everything's been done." That's when Andrews decided to go ahead and send Sabiston a check for the $7,500 "consulting" fee.

Sabiston's take on the sequence of events, described at length on his Web site, www.flatblackfilms.com, is somewhat different from Andrews': "For a week, we considered doing the commercial. If these jokers were going to cash in on our look, we should be getting a hell of a lot more than $7,500. We offered to do the commercial, and I flew to L.A. for ResFest. While there, I decided that Waking Life was more important than some dumb commercial. I told them to go ahead and make it without me."

Sabiston developed his own animation software more than three years ago and has used it to animate a series of MTV bumper spots (above) and the upcoming feature film <i>Waking Life,</i> among other things.
Sabiston developed his own animation software more than three years ago and has used it to animate a series of MTV "bumper spots" (above) and the upcoming feature film Waking Life, among other things.

The end result of this initial "he said/he said" battle was that Sabiston wasn't going to be creating any Earthlink ads anytime soon. "That was fine, though," Sabiston adds. "I began to get nervous when they said they wanted to put a T1 line in [the Flat Black Films offices] and get us all cell phones." (Andrews says the bandwidth upgrade would have been necessary for sending the work-in-progress over the Net.)

That seemed to be the end of it until the ads began cropping up on television in late December. Sabiston says he was "shocked and angry" at how exactly the animation in the Earthlink ads mirrored his own work. His main complaint about what transpired is that the ads didn't just approximate the look and feel of his software -- they copied them note for note. He says as much on his Web site, under the none-too-subtle heading "Earthlink Sucks": "Honestly," he writes, "I didn't think they'd be able to rip off the style so closely. They were and they did, and not just the look of the animation, but the whole concept of my 1997 MTV spots and our film 'Roadhead.' They directly lifted the 'interview from the street' dialogue snippets, the jump-cuts from one style to the other, the black-on-white simple line style, even specific scenes from our films. To give them credit, however, they did change the white to orange."

Soon after the ads began to air, the aforementioned congratulatory calls began coming in, and Sabiston took defensive action, approaching an attorney and asking Andrews (reasonably, it seemed) for a much larger cut of the Earthlink paycheck than had initially been offered.

He also went public with his cause, calling the ads "a total rip-off" in an article that ran on the Mr. Showbiz Web site February 12, in which he also commented, "I'd worried that the ad agencies would put them up for an industry award. I'd hate to see that happen. It wouldn't be right."

Andrews was nonplussed at this turn of events and worried that his sterling industry rep might be damaged by the fallout. It was a reasonable concern, seeing as he had brought Sabiston on board with Chiat/Day, and suddenly things were falling apart. Sabiston, for his part, just wanted the offending spots pulled from the airwaves, and at this point, Andrews offered to split the profits from the ad with the animator. "A lot of people worked hard on the spots and had to be paid," said Andrews in the Mr. Showbiz article, but Sabiston maintained that he would be satisfied only if the ads were taken off the air.

Despite the amount of bad blood flowing, Sabiston's legal wranglings have to date gone nowhere, chiefly because the issue is one of "look and feel," and an artist's style can't -- at this point -- be copyrighted. Where would all those Edvard Munchian inflate-o-Screams be if that were the case?

"It's like that whole thing with the technique in The Matrix with the bullet photography," explains Andrews, rightly citing the fact that the cutting-edge effects work in the Wachowski Brothers sci fi parable has since become so commonplace as to be a cliché.

And Andrews is right when he adds that the technique of rotoscoping has been employed for years. "Bob had a particular style of doing it with video," he adds, "but now there's a Doublemint commercial out that completely rips it off -- obviously Bob's not being paid for that."

For his part, Sabiston has filed the whole debacle under Things Not to Do Ever Again, subcategory: Commercials. Still smarting from the experience, he's created and entered a trio of fake Earthlink ads in this year's ResFest, the annual digital animation festival in Los Angeles.

"It's just really frustrating when someone you've trusted does something like that to you," Sabiston says. He may be bitter about the whole experience, but with the imminent theatrical release of Waking Life on the horizon, it's unlikely that Sabiston and Flat Black Films (not to mention his proprietary software) are going to suffer anything but a golden future. And Sabiston adds that there's a "50/50" chance that he'll release some form of the software to the public in the coming year. "Ideally, someone would buy it off me so I wouldn't have to deal with the marketing," he says. "I talked to Apple about it, and they're potentially interested. They're just not dying to do it."

Back in L.A., Andrews has tried to move past a prickly situation. He notes that there's never been any denial that the ads have` been styled after Sabiston's work.

"I love Bob's work," says Andrews. "He's a truly unique animator, and I thought he was going to be up to his ears in Earthlink all year long. They were dying to do more. But I'm sure not going to do it now. Not without some peace with Bob. It's a shame, because talented artists are available to create interesting stuff. But it's too hot."

Finally, regarding that $7,500 consulting check that Andrews sent to Sabiston back in December?

The animator cut it into the shape of a heart, had it laminated, and returned it to Andrews for Valentine's Day.

Ars gratia artis, indeed.

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