Ticketmaster, the “world’s largest ticket marketplace and the global market leader in live event ticketing product and services,”[i] recently acted as the ticket provider for Taylor Swift’s forthcoming Eras Tour.[ii] Presale tickets for the Eras Tour went on sale November 15, 2022, and fans quickly began to experience long wait times, passcode validation errors, were booted from the ticketing queue, and were kicked from Ticketmaster’s website because of frequent crashing.[iii]Because of these online errors, fans that obtained tickets had a horrible ticket-shopping experience[iv] that Taylor Swift likened to “several bear attacks.”[v] Others were left ticketless entirely. Following the handling of this sale, several fans and lawmakers, including Tennessee Attorney General, Jonathan Skremetti, Congressman David N. Cecilline, Congresswoman Alexandria Ocasio-Cortez, and Senator Richard Blumenthal, have all called for an investigation into Ticketmaster’s business practices.[vi] The Justice Department, however, had already launched an investigation into Ticketmaster’s potential antitrust violations prior to Ticketmaster’s handling of Taylor Swift’s Eras Tour ticket sales; no findings of this investigation have been published yet.[vii]
Though Ticketmaster is currently under investigation, the company has long faced scrutiny from the public and members of the legislature under allegations of antitrust violations via monopoly practices.[viii] Ticketmaster was founded in 1976 and grew to be a massive powerhouse in the ticketing industry relatively quickly.[ix] By 1991, Ticketmaster had acquired its major competitor, Ticketron, and controlled a fair share of the ticketing market.[x] Not long after this acquisition, Ticketmaster faced legal challenges raised by the rock band, Pearl Jam, alleging that Ticketmaster had a “virtually absolute monopoly on the distribution of tickets to concerts.”[xi] Pearl Jam’s suit, and subsequent investigations into Ticketmaster’s practices, eventually went nowhere, and so, Ticketmaster continued to conduct business as usual.[xii]
In 1996, Ticketmaster began selling their tickets online and in 2001 had struck a deal with another major company, Clear Channel (who would later become known as Live Nation) to provide ticketing for all Clear Channel events.[xiii] By 2010, Live Nation and Ticketmaster formally merged into their parent company, Live Nation Entertainment.[xiv] Live Nation and Ticketmaster’s merger required the approval of the Justice Department because the size of both companies, when combined, had the potential of creating a monopoly on the ticketing system in violation of United States antitrust laws.[xv] Against significant opposition from members of the music industry, the Live Nation and Ticketmaster merger was approved by the Justice Department with two exceptions: the company was required to sell some parts of its business and was forbidden from threatening any concert venues with losing access to its tours if those venues did not work exclusively with Ticketmaster.[xvi] The terms of the merger’s approval were set to last until 2020. In late 2019, however, the Justice Department investigated Live Nation and found that it had repeatedly violated the terms of the merger’s approval.[xvii] The Justice Department remedied these violations by adjusting the terms of the merger’s approval to clarify the legal limits of Live Nation’s ability to negotiate ticketing deals and extended the approval terms until 2025.[xviii] With this history in mind, many members of congress and the public have begun calling for an investigation into Ticketmaster’s antitrust practices following the Taylor Swift Eras Tour ticket sale.[xix] With so many fans and legal entities vocalizing their frustration with having to purchase event tickets solely from Ticketmaster, it is important to understand why artists and venues would continue to work with Ticketmaster.
Many artists and venues likely continue to partner with Ticketmaster because of how massive Ticketmaster’s reach is and because it is too financially risky not to work with Ticketmaster. Ticketmaster conducts business not only in the United States, but also in several different countries.[xx] Live Nation, the company Ticketmaster merged with, is also “one of the music industry’s biggest powers in the management of artists” and has over 100 managers that work with more than 450 artists.[xxi] Additionally, Ticketmaster had exclusive contracts with around 80% of large venues in the United States at one time.[xxii] While these contracts have since removed the exclusivity clause, many of the venues that Ticketmaster had exclusive contracts with continue to partner with them.[xxiii] Many venues might feel compelled, at least in part, to continue working with Ticketmaster because failure to do so could result in loss of tour access to revenue-generating artists that Live Nation represents.[xxiv] Large-scale artists, like Taylor Swift, might feel compelled to work with Ticketmaster to sell tickets for their concerts because if they do not, the venues they can tour at may be less profitable.[xxv] For example, after Pearl Jam sued Ticketmaster in 1994, the band planned to play only non-Ticketmaster venues.[xxvi] When planning for tour, Pearl Jam had a difficult time finding venues that had adequate acoustics and large enough stages to ensure the safety of the band and their fan base.[xxvii] Because of these challenges, Pearl Jam toured very little in the United States and almost exclusively played international shows.[xxviii] Thus, some artists may feel compelled to work with Ticketmaster to guarantee that they may profitably tour in safe performance spaces that accommodate their demand.
With both artists and venues feeling compelled to continue working with Ticketmaster, fans are stuck dealing with Ticketmaster and hoping to resolve any disputes they may have through Ticketmaster or the court system. However, both methods offer inadequate protections for consumers. First, Ticketmaster limits fans’ ability to challenge any of Ticketmaster’s selling procedures via an arbitration clause in the Terms and Conditions posted on its website.[xxix]Ticketmaster’s arbitration requires fans who want to legally challenge Ticketmaster to pay a $300 filing fee and cover their own attorney expenses.[xxx] It additionally limits fans’ ability to appeal the arbitrator’s decisions by requiring the appeal be heard by someone working within the arbitration system, not the courts.[xxxi] By forcing individuals to participate in arbitration, Ticketmaster obstructs the individual’s right to have their voice heard in court and keeps the company away from harsh scrutiny by the judiciary. Thus, the protections that Ticketmaster offers to consumers are inadequate.
Second, even when claimants can bring their case to court, their claims are often dismissed for lack of standing. In Illinois Brick Co. v. Illinois, the Supreme Court held that only the “direct purchaser” from a monopoly supplier could sue for antitrust damages.[xxxii] In the event ticketing market, the direct purchaser of the tickets is traditionally considered to be the venues and event promoters with fans being only indirect purchasers.[xxxiii] This is because “ticket buyers only buy Ticketmaster’s services because concert venues have been required to buy those services first.”[xxxiv] Thus, if anyone has standing to sue Ticketmaster, it would be the touring venues; but, venues are unlikely to sue because of the same risks to profit and accessibility described above. Because the right to sue for damages rests with the direct purchasers, fans will lack standing to sue, and thus, the court system also fails to provide adequate consumer protections.[xxxv]
While it will be interesting to see what the Justice Department’s investigation into Ticketmaster’s monopoly reveals in the future, consumers need protections now. Leaving fans unprotected from Ticketmaster’s reach is certainly an issue of massive importance when considering the global reach of Live Nation Entertainment and the control it has over the ticketing market. But, because the consumer protections offered by Ticketmaster and the court system are inadequate, fans seeking recourse are likely to have the most success by appealing to the Legislature. For more information on how to contact your state and federal representatives, visit: https://www.commoncause.org/find-your-representative.
[i] Ticketmaster Business, Media Hub, Ticketmaster Business (2022), https://business.ticketmaster.com/media [https://perma.cc/9Y2E-RM6S].
[ii] Ticketmaster Business, Taylor Swift the Eras Tour Onsale Explained, Ticketmaster Business (Nov. 19, 2022), https://business.ticketmaster.com/business-solutions/taylor-swift-the-eras-tour-onsale-explained [https://perma.cc/P76E-3SKJ].
[v] Saba Hamedy, Ticketmaster Apologizes; Taylor Swift Says Watching Fiasco Has Been ‘Excruciating’, NBC News(Nov. 18, 2022, 10:59 PM), https://www.nbcnews.com/pop-culture/pop-culture-news/taylor-swift-says-watching-ticketmaster-fiasco-excruciating-rcna57897 [https://perma.cc/BX3S-MZHJ].
[vi] Rachel Tillman, Lawmakers Slam Ticketmaster After Taylor Swift Presale Struggles, Spectrum News (Nov. 16, 2022, 6:27 PM), https://www.ny1.com/nyc/all-boroughs/news/2022/11/16/taylor-swift-tour-ticketmaster-lawmakers-call-for-ftc-doj-investigation [https://perma.cc/7TGD-G7GJ].
[vii] David McCabe & Ben Sisario, Justice Dept. Is Said to Investigate Ticketmaster’s Parent Company, New York Times(Nov. 18, 2022), https://www.nytimes.com/2022/11/18/technology/live-nation-ticketmaster-investigation-taylor-swift.html [https://perma.cc/V3L6-9369].
[viii] Judd Legum, How Ticketmaster Gets Away with It, Popular Information (Oct. 20, 2022), https://popular.info/p/how-ticketmaster-gets-away-with-it [https://perma.cc/M27Q-DVEY].
[ix] Ticketmaster, Our History, Ticketmaster (2022), https://www.ticketmaster.com/about/our-history.html?tm_link=abouttm_history [https://perma.cc/2V6Q-N8GD].
[xi] Charles Bilodeau, Pearl Jam vs. Ticketmaster: A Holy War on Reality, Foundation for Economic Education (May 1, 1995), https://fee.org/articles/pearl-jam-vs-ticketmaster-a-holy-war-on-reaiity [https://perma.cc/WQ9K-BFEY].
[xii] Cody Mello-Klein, Taylor Swift Ticketmaster Fiasco Is Part of a Bigger Problem in the Music Industry, News@Northeastern (Nov. 17, 2022), https://news.northeastern.edu/2022/11/17/taylor-swift-ticketmaster [https://perma.cc/24NP-Z4PF].
[xiii] Ticketmaster, supra note ix.
[xv] McCabe & Sisario, supra note vii.
[xix] Tillman, supra note vi.
[xx] Ticketmaster Business, Our Story, Ticketmaster Business (2022), https://business.ticketmaster.com/our-story [https://perma.cc/KEJ8-R6CC] (Stating that Ticketmaster conducts business in Argentina, Australia, Austria, Belgium, Canada, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Ireland, Israel, Italy, Mexico, Netherlands, New Zealand, Norway, Poland, Qatar, Singapore, South Africa, Spain, Sweden, Switzerland, Taiwan, Turkey, United Arab Emirates, and United Kingdom.).
[xxi] McCabe & Sisario, supra note vii.
[xxiii] Sean Murray, Ticketmaster to Remove Exclusivity Clauses from Contracts with Venues After Agreement with Regulator, Journal Media (Nov. 30, 2020), https://www.thejournal.ie/ticketmaster-ccpc-agreement-5283408-Nov2020 [https://perma.cc/4UA7-5FS6].
[xxiv] Legum, supra note viii.
[xxv] Sarah Whitten, Taylor Swift’s Tour Promoter Says It Had No Choice but to Work with Ticketmaster, CNBC (Nov. 22, 2022, 6:55 PM), https://www.cnbc.com/2022/11/22/taylor-swift-tour-promoter-had-to-work-with-ticketmaster.html [https://perma.cc/5FBY-DZFL] (Taylor Swift’s tour promoter stated that “Ticketmaster’s exclusive deals with the vast majority of venues on the ‘Eras’ tour required us to ticket through their system. We didn’t have a choice.”).
[xxvi] Mello-Klein, supra note xii.
[xxxii] Illinois Brick Co. v. Illinois, 431 U.S. 720, 741 (1977).
[xxxiii] Campos v. Ticketmaster Corp. 140 F.3d 1166, 1171 (8th Cir. 1998).
[xxxv] Id. at 1170.