The Department of Justice is bringing a major antitrust case against the hated Ticketmaster and its parent company, Live Nation. Will it be enough to fix an increasingly predatory live-music industry?
The Department of Justice has filed a lawsuit against Live Nation and Ticketmaster.(Gabby Jones / Bloomberg via Getty Images)
Long the scourge of the music industry, Ticketmaster’s imposed fees have become a regular part of the concertgoing experience. But a new Department of Justice (DOJ) lawsuit against Ticketmaster and its parent company, Live Nation — one of the largest venue owners in the country — may change that.
The DOJ says that, together, Ticketmaster and Live Nation have forced fans into paying way too much to see their favorite bands. Ticketmaster’s huge market power led Pearl Jam to testify against the ticketing giant before Congress in 1994, and more recently megastars like Taylor Swift have spoken out against the company and its perceived monopoly.
For the Lever Time podcast, Arjun Singh sat down with veteran indie musician Greg Saunier, drummer and founding member of Deerhoof, and antitrust expert Morgan Harper from the American Economic Liberties Project to discuss the ways Ticketmaster has hurt artists, fans, and small venue owners, and to unpack the lawsuit and ask whether it will bring meaningful improvements to an increasingly predatory music industry. This transcript has been edited for length and clarity.
Arjun Singh
The Department of Justice filed a lawsuit against Ticketmaster. But what does that mean? US attorney general Merrick Garland pretty much said, we want to break up Ticketmaster and Live Nation. Is that actually on the table? And what’s the legal rationale for it?
Morgan Harper
Complaints about Ticketmaster and Live Nation have been going on for some time. This company has been engaging in what a lot of folks consider to be monopolistic behavior, bullying everybody in the industry, from artists to fans to venue owners. When [my organization, the American Economic Liberties Project] first got involved, it was to make the point that this merger combining Live Nation and Ticketmaster never should have happened in the first place. It was approved in 2010.
If you spend the time to go through the [DOJ’s] complaint, what they are saying is that Live Nation and Ticketmaster control about 80 percent of the primary ticketing market. And they are now controlling concert promotion. If you want to go on tour and make some money doing that, then you likely are trying to play by Live Nation and Ticketmaster’s rules, because they dominate a lot of that space.
They’ve gobbled up the venue market. I think the number in the complaint is they’re controlling 60 percent of the largest venues nationwide, amphitheaters where a lot of tours want to stop to be able to access their audiences. That’s in addition to the artist-management business line that they control, and then this whole other category of sponsorship and advertising.
Though Ticketmaster, the ticketing platform, gets a lot of attention, the Department of Justice is alleging that the combination of these different business lines — and how Live Nation/Ticketmaster can leverage their power in those business lines — makes them an impenetrable force and a real monopoly that is engaged in anticompetitive illegal conduct and needs to be broken up.
Arjun Singh
Isn’t 40 percent of market share considered a monopoly? So this would be double what is legally defined as a monopoly by that standard, right?
Morgan Harper
How much market share is too much market share? There are a lot of factors that go into play to determine when you’re veering into monopolistic conduct. But 80 percent is a very, very high market share.
Sometimes the argument is, couldn’t it just be that you’re better than everybody else? That people love Ticketmaster and are choosing Ticketmaster, and we wouldn’t want to punish companies for just being better. But once you’re getting to 80 percent market share for something like ticketing, that is a pretty broad type of product. In combination with all these other business lines in the same industry, that does start to raise a certain level of suspicion. Like the DOJ laid out, it is this combination of relationships and that primary ticketing market share of 80 percent that allows Live Nation to have so much power over the rest of the market.
Arjun Singh
Greg, you’ve been playing music for more than thirty years, in a couple different bands. How do you feel about Ticketmaster? Do they exert much control over your day-to-day life as a musician?
Greg Saunier
It’s the level of consolidation that has ramped up and made Ticketmaster the target of so much ire — mostly fan ire, but also musicians’ ire as well. The conflict with Pearl Jam was happening around the same time that my band started. So my band goes from the beginning of this whole narrative.
Arjun Singh
What was the deal with Pearl Jam and Ticketmaster? I’ve been seeing the old-school pictures of Eddie Vedder back in the day in Congress. What were they dealing with back then?
Greg Saunier
There were many things. This was before any merger had occurred. I think Pearl Jam found it suspicious, even then, that Ticketmaster appeared to be the only option when you’re getting up to that mainstream, famous kind of level as an artist. You didn’t have any choice — you had to sell your tickets through Ticketmaster and just shut up in reference to whatever surcharges they decided to add.
The DOJ is alleging that the combination of these different business lines — and how Live Nation/Ticketmaster can leverage their power in those business lines — makes them an impenetrable force.
Pearl Jam made the attempt to set up an entire US tour without visiting any venue that sold their tickets through Ticketmaster. So they ended up in a whole bunch of random small towns that didn’t usually see Pearl Jam arriving.
Arjun Singh
Morgan, hearing that anecdote about the impossibility of going on a national tour without having to use Ticketmaster — is that an anticompetitive tactic? Is that an example of Ticketmaster being a monopoly? And what are some of the other ways you’ve seen them engage in what we would consider illegal monopoly behavior?
Morgan Harper
Greg’s absolutely right — they were dominating ticketing long before the Live Nation merger. They acquired this company called Ticket Tron. This was part of a long journey that allowed them to get to that dominance in ticketing.
But they were [also] able to exert a lot of influence over venues, for example, even before the merger. “If you want to get access to our ticketing platform, then you need to make sure that you’re working with us all the time and creating exclusive contracts.” Exclusive contracts aren’t always anticompetitive, but they can be seen as anticompetitive, depending on how they’re deployed.
They were so dominant. That was really what spurred the merger. Live Nation was thinking of developing its own ticketing, because it was also getting sick of the fees. It was like, what is this, really, that we don’t even know how much things cost? Because when you’re a middleman, you can just make up how much things cost, and let somebody know what the price is that they’re just going to have to take.
That fear of having a real competitor on the ticket market, and a different ticketing platform that Live Nation would be able to control with their venues, led Ticketmaster to say, no, let’s pause this — we don’t need to be enemies, we can be friends and make as much money as possible.
What we’re seeing now is that there’s been such a level of consolidation across all these different business lines. I wish Pearl Jam could be out there talking about everything that’s going on right now because there would be lot more people who would understand what they were saying. But the political conditions around them have changed quite a bit. That’s what makes us optimistic about where we might head from here since this DOJ lawsuit was filed.
Arjun Singh
Say you’re like, “F Ticketmaster, I don’t want to use them at all.” Are you able to just buy a ticket? Back in the day, you used to be able to drive to the venue, wait at the box office, and get a ticket. Is that possible now? There have been instances where I’ve been to venues where they say you have to buy through Ticketmaster — or you get to the box office, and they still charge you a Ticketmaster fee.
Greg, is that something you’ve noticed? And Morgan, is that widespread?
Greg Saunier
There is an irony here, because this company has been making so much profit while venue staff wages have stagnated during that same time period, the past couple of decades, and while artists’ income has dramatically decreased.
I agree with you, Morgan, that it’s starting to make a lot more sense in 2024 than it did at the peak of Pearl Jam’s fame, when they were speaking about it. Now it’s considered common knowledge that corporations in the business of consolidation — which is a very painless-sounding, technical term — that really means their business model is the crushing of small business, either by putting it out of business or by buying up the venues we play at.
We avoid Live Nation venues once in a while. We can’t avoid it for the simple reason that they have purchased or put out of business so many venues across this country. If we want to play in a certain town, there’s no choice; the only venue that’s the appropriate size for our audience is a Live Nation venue.
Arjun Singh
Have Ticketmaster and Live Nation made it impossible for people to not use them? Is that a fair assessment of what we’re seeing?
Morgan Harper
I think it’s a very fair assessment. I did an interview last week after the lawsuit dropped for local TV in Columbus, Ohio, and the reporter did a great job. This reporter, who did not know anything about the topic area, put together a good mix of voices. So in addition to interviewing me, they also talked to the owner of a local venue called Ace of Cups.
The owner, who’s also a musician himself, was like, this is one of the venues that doesn’t use Ticketmaster; they still allow you to just show up and buy a ticket. But he said, it’s really hard. Because if you’re trying to get a wide variety of artists, so many are constrained in the type of deal that they can make with you, as an independent venue.
Pearl Jam found it suspicious that Ticketmaster appeared to be the only option when you’re getting up to that mainstream, famous kind of level as an artist. You didn’t have any choice.
That gets at something Greg had said, where you’re having players in the market that are losing their agency to strike their own deals. There are these conflicts of interest and the walled garden of Live Nation/Ticketmaster — that’s when it starts to sound a lot more like a monopoly. Because the reality is, this Ace of Cups is a great venue, but it’s a small venue. If you’re trying to get to that next level, then that’s where Live Nation does have a lot more control and ownership of venues.
The complaint that was filed also is talking about how they’re gobbling up regional promoters. [They’re] acquiring regional promoters that might be presenting a real challenge, which makes a lot of sense. Maybe you’re starting a company — you’re not looking to dominate the global live-events industry, you’re just wanting to make a great promotion company for folks who want to get throughout the Deep South and [play at] the best venues. But Live Nation, which does appear to want to dominate the entire global live-events market, especially in the United States, can’t trust any source of competition. So they’re going to try to acquire you and use that Ticketmaster ticketing platform to be able to intimidate other companies and venues from ever accepting anything but Ticketmaster, because [the venues] are terrified of being shut out of the entire ecosystem and potentially losing tours that will make them a lot of money.
It is, again, these conflicts of interest, the control of different business lines, that really allow them to make it a take-it-or-leave-it situation for consumers, for artists, and for venue owners. That’s why Pearl Jam tried to essentially recreate the ecosystem. But you can’t recreate that many different components that it takes to pull off a successful national tour.
Arjun Singh
Greg, do you feel optimistic about what the potential breakup of Live Nation and Ticketmaster could do for you as a smaller musician traveling around?
Greg Saunier
When we’re talking about the [Live Nation/Ticketmaster] merger happening in 2010. We’re talking about Barack Obama’s first term, just after financiers crashed the world economy and were bailed out by the same administration, whose antitrust person decided it wasn’t a big deal for this merger to occur. Those bailouts [were based on the idea that the banks were] too big to fail. And you’re thinking to yourself, if this government or this society had any sense at all, it would not be deliberately creating more too-big-to-fail megacorporations, particularly when we keep talking about consolidation and profit.
To your question: my sense is that this did happen because of disgruntled Taylor Swift fans. The coverage that’s been happening in the past week, particularly in the most mainstream news outlets, has tended to focus on Swifties somewhere in the headline or in the first paragraph. This both makes light of the topic, in my opinion, and ignores all of the harm that Live Nation and Ticketmaster have been doing not only to the music industry, but also to venues, to staff, and to the artists themselves.
The proposed solution [to the 2022 Taylor Swift ticket sale fiasco] would seem to be . . . the website wasn’t convenient enough. I want greater convenience. What we need is a larger corporation with a better IT department or something that doesn’t let their website crash. Put another way, it seems to send the message that where Live Nation/Ticketmaster screwed up this time was that they allowed the commerce of too large of a megastar to be interrupted. Nothing to do with a Deerhoof or any band on my level.
This company has been making so much profit while venue staff wages have stagnated during that same time period, and while artists’ income has dramatically decreased.
I have so much respect for you, Morgan, and everything that you’ve said, and the long-term fight against monopolies that are doing things like crashing the world economy and making us all poor. But I have to ask, when’s the last time the DOJ actually broke up a monopoly? I have a vague, nebulous memory of something with Microsoft about thirty years ago. When I think of a corporation as large as Live Nation/Ticketmaster, I’m suspecting that maybe they have a legal team, and this legal team may be experts at tying this up for years in the courts.
So everybody gets fired up right now, in an election season. It may seem like a virtue-signaling attempt, not necessarily on Merrick Garland’s part, but possibly on the part of the Biden administration as his numbers are tanking, particularly with young people. My prediction is that they will not be broken up. They will be slapped with an insignificant fine that will barely even be noticeable in their bottom line, and they may be mandated to offer some kind of vouchers to a few aggrieved Swift fans, which get you $5 off the next time Taylor Swift goes on tour, or something like that.
Arjun Singh
I will say, a lot of what I’ve heard about antitrust in the past couple of years, people have said it feels like a sea change. I wonder if there is some room for optimism. Morgan, how do you see this?
Morgan Harper
I understand the cynicism, and I respect that. I am optimistic.
It is important to pay attention to the finances of Live Nation/Ticketmaster. One of the terms that was put in a complaint that we all need to continue to pay attention to is “adjusted operating income,” or adjusted operating margin. This is the bucket of money that Live Nation/Ticketmaster is making that appears to be connected to this pool, where they get to skim everything off the top because they’re the only ones with full information about all these market areas. Then they let the artists know, you thought that was a really great tour where you made a lot of money? It turns out that was only this big pot of money minus X, and then we get to Y, and Y is just so-so. So, sorry, deal with it — this is what we’ve got left.
That’s important. Ticketmaster is already starting to say this is just a low-margin business [in] ticketing, that it barely makes any money off of the ticketing business. When you look at sponsorship advertising, they have absolute control over who gets to advertise at their venues on their tours. The DOJ is alleging that those margins are like upward of 60 percent. In competitive industries, you don’t see margins of 60 percent — that is a very high margin.
Getting to the historic nature of the case, it’s true that the DOJ has not broken up a company in quite some time. Microsoft actually settled in such a way that forced it to open up their platforms. Many would argue, and we as an organization do, that it ushered in the age of the internet. Now, the age of the internet has not landed us in the best of places. But it did allow that innovation to occur.
The last real breakup was with AT&T, with telecom, forcing all [the Bell companies] to break up. That was several decades ago, so it has been a while. The reason that I’m optimistic, though, is because there is different leadership. I would be highly surprised and disappointed if we see any kind of settlement coming out of this. I don’t see it happening based on the facts that the DOJ has laid out in this one-hundred-plus page complaint and Live Nation/Ticketmaster’s track record.
Here’s the other thing that’s relevant. The merger was approved using a whole different body of law. That was a Clayton Act case, which is about assessing whether or not a merger should go through. [The DOJ brought this suit] under Sherman Act Section 2, another very old law in US history that gets at monopolization conduct. So it’s a totally different ball game here, and I don’t think that they would have brought this type of case if they weren’t in it to win it. And it has been taking a lot of other big, high-profile cases to trial — against Google Search, for example. We’re waiting to see how the judge will rule there.
If they are able to convince a court, and this will be tried in the Southern District of New York with a new Biden-appointed judge — so a friendly judge, because it reflects the priorities of this administration — I think we’re going to see changes for consumers as fans, for artists, for venue owners, and hopefully for concert promoters as well. Take, for example, this Taylor Swift tour. You have Americans flying to Europe to see her shows there because they’re cheaper. It’s cheaper to pay for airfare to get to Europe and pay for a hotel, because the tickets are so much safer. Why is that? Live Nation is still operating there; there’s Ticketmaster. But they don’t have as much venue ownership, and they also don’t have the ability to do exclusive contracts with the venues [that prohibit venues from] shopping around for which ticketing platform they want to use.
Greg Saunier
I certainly hope that the DOJ wins. My concern is that even a victory will not completely change the nature of the music industry or the nature of the music economy; it will not restructure it. It will simply make it more competitive, which is fine.
What I was speaking to about these questions of national chains . . . Burger King isn’t a monopoly. Even if they broke up McDonald’s and Burger King and Wendy’s, I still don’t want to go to any of them. And I’m not going to want to use Ticketmaster, even if they [come to have] a smaller market share and they’re now competing with NextTicket or whatever their competitors are. They’re all corny, and they’re all crooks. A person that behaves properly under a system that rewards financiers for being rich and pays rich people for being rich, and punishes poor people for being poor, doesn’t change just because they’re one iota more regulated.
I’m curious about Biden’s focus a few months ago on junk fees. It is obviously a similar topic. It struck me at the time as a very minor slap on the wrist. I would like something to fundamentally change. For me, it’s obvious what to do: you nationalize it.
Morgan Harper
I agree with you, to the extent that, even if Live Nation/Ticketmaster is found liable, [if the court] just calls for those behavioral remedies that are sort of like “please, just do a little bit, we’ll monitor” — it’s very difficult to monitor a giant. The DOJ tried to do that in 2010. It negotiated a consent decree with some of those terms, that Live Nation blew through instantly because it has immense financial resources.
But that’s the beauty of antitrust remedies when you impose structural ones: it takes away a lot of that work on the other side of it. If Live Nation/Ticketmaster is forced to divest all the business lines and banned from entering into exclusive agreements with venues and also has to open up its host software platform, that will be the beginning of injecting some competition.
I would like something to fundamentally change. For me, it’s obvious what to do: you nationalize it.
Then you have to see how the market develops. But that would be a whole new world, based on where we’ve been for the last thirty years, if they are truly barred from owning all of these business lines and can’t impose any exclusive agreements on other market players.
Greg Saunier
It legitimizes the existence of a completely pointless middleman that didn’t use to exist, that’s what I think.
Morgan Harper
It eliminates its existence, actually. It won’t be able to be a middleman anymore because it’s only going to be [in one line of business].
Greg Saunier
But remember, the Live Nation/Ticketmaster merger took place after Eddie Vedder’s issue with Ticketmaster. That had nothing to do with breaking up that conflict of interest. He didn’t like that Ticketmaster existed in the first place — he didn’t like the entity itself, the principle.
I hear you, and I’m also [hoping] that this will produce a beneficial and healthy change for the people — the nonfinanciers, the people who actually make or host or love music. I still have a sneaking suspicion that it legitimizes the financialization of [the industry]. Maybe there’ll be more competitors. But we see things like artists who have their entire back catalog’s publishing rights bought up by some incredibly rich investor; we see Bandcamp being bought up by a billion-dollar company and then immediately dumped to some other multimillion-dollar company. Even in the lifespan of my own band, I’ve seen the music industry become a world of finance, in which music is only the bait.
Morgan Harper
I think you tapped into the larger fight that those of us who believe in freedom, really, to have some control of your life, who believe in creating and in looking after your community — the fight that we’re up against is financialization of the economy, and [trying to bring] more autonomy to more actors in the economy. So I do not at all want to oversell what the Live Nation/Ticketmaster lawsuit will do to get us to the end of that fight. But I do think it is one step along the way.
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