What the Live Nation suit is really about (Hint: It’s not Taylor Swift)
The fees Ticketmaster charges concertgoers have long been among the most universally despised music industry practices, perhaps only rivaled by paltry streaming royalties, the overuse of autotune and, more recently, AI-generated music videos.
So it came with little surprise that the U.S. Department of Justice last week sued the ticketing giant’s Beverly Hills-based parent, Live Nation, with the stated aim of breaking up the world’s largest live entertainment company.
The Justice Department, joined by 29 states and the District of Columbia, accused the firm of maintaining illegal monopolies in both ticket selling and concert promotion, and said it had used its market power to stifle competition and pressure music artists into only using its services. The company had threatened rivals with retaliation, the Justice Department said in its 124-page complaint filed Thursday, in which it seeks a jury trial.
The DOJ wants to break up Live Nation and Ticketmaster, citing exorbitant ticket prices for concerts. But would splitting up the two giants deliver the desired outcome?
The lawsuit has probably already provided the government with a political victory. Just about everyone has felt the annoyance of getting hit with a cascade of fees while trying to buy tickets for a favorite act. Ticketmaster is now also associated with the Taylor Swift Eras tour presale debacle, in which the ticketing system crashed due to an overload of fans and bots.
What’s far less certain is whether the suit will achieve the goals the government has laid out. The Justice Department will have to prove its case in court, and the process is likely to take a long time, with a trial possibly not starting until 2026. The last time the government successfully broke up a vertically integrated company was in 1982, when AT&T agreed to dismember itself to settle a long antitrust battle.
Analysts at brokerage firm Cowen & Co. put the odds of a Live Nation breakup at “sub-50%.†That’s not a certainty by any means, but it represents a meaningful risk for the company. Live Nation’s stock fell sharply after the suit was filed.
Working in the government’s favor is the fact that the combination of Live Nation and Ticketmaster has been controversial from the get-go. The Obama administration approved the merger of Live Nation and Ticketmaster in 2010, despite widespread opposition in the music industry, including from artists and particularly from rivals who feared being squeezed out.
The merger was approved on conditions laid out in a settlement agreement between Live Nation and the government. Those conditions were meant to prevent the company from punishing concert venues for using other ticketing options, among other actions. The consent decree was amended and extended in 2019, with Live Nation agreeing to the continuation of independent oversight.
By calling for a breakup, the government is, essentially, declaring that those strictures haven’t been enough.
“What the Justice Department is saying is, ‘Look, we made a mistake back in 2010,’†said Lawrence J. White, an economics professor and antitrust expert at New York University’s Stern School of Business.
The Live Nation lawsuit is the latest example of the Biden administration taking more aggressive action than its predecessors when it comes to checking the power of companies, especially tech giants. In recent years, U.S. government entities have brought high-profile cases against Google, Amazon, Facebook parent Meta and Apple. The effort to break up Live Nation is, if anything, an even more populist calling card than taking on the behemoths of Silicon Valley.
Live Nation executives argue that they are not running a monopoly. They say that the government has inflated the company’s share of the concert promotion business, for example, by focusing on the market of large venues, thereby making Live Nation seem more dominant than it actually is. In a conference call with Wall Street analysts last week, Live Nation corporate bosses said that they’d tried to reach a settlement with the Justice Department but ultimately realized they were facing a “predetermined outcome.â€
Dan Wall, Live Nation’s executive vice president of corporate and regulatory affairs, suggested that the bulk of the business practices the government is taking issue with could be addressed without breaking up the company. Many of the practices at issue, such as exclusivity arrangements between Ticketmaster and concert venues, predate the 2010 merger.
“However, we all know that that’s what the most effective way to get the big headlines was and I think that that’s why we’re seeing that,†Wall said. “It’s very unfortunate.â€
Live Nation would prefer to deal with the government’s complaints through “behavioral remedies,†or fixes that don’t lead to structural change at the company. But the view from Live Nation’s longtime critics is that such remedies have been tried already — and they haven’t worked.
“Behavioral remedies as a general matter, especially in this kind of situation, are problematic, because all of the incentives for the entity are to find ways around the restrictions,†White said. “They figure out ways to get around it.â€
To be clear, Ticketmaster is not really the main reason it’s so expensive to attend the Eras tour, which is the prime example of outrageous costs cited by Sen. Amy Klobuchar (D-Minn.) in a comment to Rolling Stone.
Taylor Swift concerts are a scarce resource, and her fans have an intense desire — sometimes bordering on desperation — to see her perform. Thus, Swift, the most popular music artist in the world, has an immense amount of pricing power.
As we’ve written before, concert tickets have increased in price, but that’s largely because of supply and demand and a willingness among consumers to do whatever it takes in a post-COVID-19 world to avoid the feeling of missing out. That dynamic plays out in even more extreme cases on the resale market, the true hotbed of what some economists call “fun-flation.â€
Plus, artists, particularly mid-tier groups, need to charge more for live shows because that’s increasingly how they make a living, given the fact that streaming royalties have not made up for the collapse of recorded music sales.
That said, while Ticketmaster isn’t primarily responsible for the bulk of concert price inflation, the fees add up, leading to sticker shock.
Perhaps separating Ticketmaster from Live Nation won’t result in lower ticket prices. That’s certainly what the company’s executives are arguing. It would, however, in the view of the government and Live Nation’s critics, offer a long overdue corrective for a past error — the decision to allow the merger in the first place.
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Number of the week
“Furiosa: A Mad Max Saga†bombed at the box office over Memorial Day weekend, grossing an estimated $32 million, marking a poor start for a film with a reported $168-million production budget, not including marketing costs.
Despite positive reviews, it’s not a huge mystery why the George Miller-directed film struggled. Prequels can be a tough sell, and “Furiosa’s†acclaimed predecessor, 2015’s “Mad Max: Fury Road,†wasn’t a huge blockbuster itself, grossing $380 million worldwide. For a certain type of dedicated film fan, a new “Mad Max†movie is a big event. It’s much less so for a broader audience.
The film barely beat Sony Pictures’ animated “The Garfield Movie,†which took in $31.1 million over four days. Excluding the COVID-19 shutdown year of 2020, “Furiosa†had the worst Memorial Day No. 1 opening since 1995, when “Casper†debuted to $22.5 million (not adjusted for inflation).
Finally ...
This newsletter was written, in part, to the eerie sounds of guitarist and singer Mk.gee, whose latest album is called “Two Star & the Dream Police.†The artist caught Eric Clapton’s attention. Now he’s got mine. Here’s the video for “Are You Looking Up.â€
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