winning design contests - clents provided with design but I didn't get paid

[nataliemargo]

Hello,
I've taken part in several graphic design contest on DesignHill.com. I've won a total amount of $1200 but can't withdraw my money. Apparently I " have mentioned negative information about Design hill. So now you will not be able to withdraw amount from your wallet.". All the clients paid for my designs and at least most of them uses them. Am I right to say they don't have any rights to use my designs? What can I do in this case?

I though Designhill was registered in the US (I'm based in European Union) but it turned out they only have an office in the US and they are based in India. Do I have any chances to recover any of my money? I've been emailing designhill for weeks now. I sent them a letter of claim infringement of design right but they ignored it. I was thinking of contacting some of the clients who used my designs (unfortunately all the conversations were held on designhill so I cannot get to all of the clients). I don't want to sound rude to them. As I know they are victims as well.

I've heard it's very expensive and almost impossible to win with Indian companies. Any ideas, please? Thank you very much in advance!

[AndyJ]

Hi nataliemargo,

I have briefly looked at Designhill's website and their Terms and Conditions. It is clear that there is no direct contractual relationship between you and the clients, however they may well be still liable for infringement (either of copyright or design right, or both) but it is not at all straightforward. The T&Cs do not explicitly require you to assign a licence to Designhill which in turn would alllow them to sub-licence your work to the client. But it is implicit that by entering a design for a competition you are offering your work together with a licence for the client to use it if it is selected by them (otherwise there wouldn't be much point in them selecting it). This means the clients are acting in good faith and, assuming that they have paid Designhill, the client expects that you will receive the fees due to you for your work. This would allow them to rely on the implied licence.

As you say, Designhill is part of an Indian company. The details are: "Designhill is a product of Reliable E Solutions Pvt. Ltd., a company registered under Companies Act, 1956 having its corporate office at B-106, South City-I, Near Signature Tower, Gurgaon, Haryana [India]. Reliable E Solutions Pvt. Ltd. is the sole owner of Designhill and reserves all the rights related to it". I haven't checked out if the company registration is valid or if the company has recently filed any accounts. The T&Cs also state that the applicable law for settling any disputes is that of the Republic of India, and in particular the India Arbitration and Conciliation Act 1996.

Your legal relationship with Designhill is just as nebulous as the one with the clients, especially as they are outside the reach of the UK courts. In normal circumstances a company operating in this manner would be deemed to be agents acting for you and this has certain legal implications concerning their responsibilities towards you. However in the T&Cs they state:

16.9. Relationship of Parties
It is expressly agreed that Company and the User are acting hereunder as independent contractors and nothing contained or implied under this Agreement creates a joint venture, agency or partnership between the User and the Company.

I think a court would need to decide whether in fact they were acting in an agency capacity, making this term void. However as things stand based on the T&Cs I can't see any grounds for a copyright claim against Designhill, meaning that all you can fall back on is a breach of contract.

Although not terribly relevant now, it would appear from the web site that the majority of submissions entail just graphics, even if they were ultimately intended to go on a product such as a mug or a tee shirt. If that was the case for you, then design right is unlikely to apply, because that right (which, in any case, only exists within the EU) is intended to protect the physical appearance (configuration, shape, contours) of a product, usually one which is mass-produced. That means that copyright would be the only basis for a claim against the clients, and of course much would depend on which jurisdiction the clients are based in.

Sorry I can't be more helpful.

[nataliemargo]

Thank you so much Andy! I created mainly logo designs, packaging designs, business cards. This looks so bad now. I was being so naive. I'm losing hope now. Still, I really appreciate your input and knowledge. So impressed! Thanks again, Natalie