Don’t let monopolies hold Taylor Swift’s next tour hostage

Taylor Swift, one of the greatest performers of our generation, announced on Sunday that she will release her next album in April. But as impressive as Swift is, she doesn’t have her own ticketing company. If she wants to go on tour for that album, there’s no choice. Given its power over large venues, Ticketmaster is the only option.

Nor do her fans have a choice. In November 2022, millions could not have been more excited. For the first time in years, Swift was touring. Excitement, though, quickly turned to anger, frustration and despair. Some waited in queue for hours before being kicked out. Others made multiple failed attempts to buy tickets that had been removed from their basket. And some “Verified Fans” were waitlisted, unable to buy tickets until the general public sale. Adding insult to injury, the sale was canceled.

This experience was not unique. Regrettably, many fans have suffered a “Ticketmaster horror story” of disappearing tickets and “jumping” prices.

Live Nation Entertainment, the combination of promoter Live Nation and ticketing company Ticketmaster, blamed unexpected demand. The president of the company criticized scalping. The chairman of the board said it was “a function of Taylor Swift.” And the former CEO had “no sympathy for people whining about high ticket prices” because “the public brought all this on itself.”

The company had every reason to cast blame elsewhere. But it also had no reason to care about quality. As a monopolist, it was not subject to a competitive marketplace. It could offer a bad product and not worry about customers fleeing from bots and cyberattacks. In fact, it could continue increasing its fees.

Ticketmaster has had control over the ticketing market for decades. After its merger with Live Nation, the top U.S. entertainment provider, in 2010, its power expanded into promotion, where it has relationships with many top artists.

The company has used this power to harm every element of the supply chain. Venues that want Live Nation’s artists have been pushed to use Ticketmaster for ticketing per the extension of the consent decree governing the Ticketmaster/Live Nation merger. Rival promoters lose out as the company undercharges in promotion while making up the profits in ticketing.

Rival ticketers, foreclosed from most venues, don’t stand a chance. And fans — that’s us — pay astronomical fees, which is ironic given the quality concerns.

This is not an inevitable result of the market. Live Nation Entertainment appears to have engaged in multiple actions that have violated antitrust law.

First, the company, by locking venues into multiyear contracts to take its ticketing services, engaged in “exclusive dealing.” The key element of foreclosure of rivals is met given the company’s control of 70 to 80 percent of major U.S. venues.

For any venues not part of these arrangements, the company has employed tying. As it might threaten the venues: “You want our artist? You must take our tickets.”

The company’s control of at least 60 percent of the promotion market, together with blocked rivals and high fees in the ticketing market support liability on this claim. So does the element of “coercion,” revealed by the company’s failure to abide by the consent decree accompanying the 2010 merger of Ticketmaster and Live Nation that required the company not to tie promotion and ticketing.

The company also engaged in deception when it used “bait-and-switch tactics” in selling tickets to fans that led to a settlement with the Federal Trade Commission.

Putting together all of these — and actions like accessing rivals’ property without authorization, using “radius clauses” that restrict artists from performing within a certain distance of a show and tying promotion to venues — could present an overall course of conduct that constitutes monopolization.

In antitrust law, the defendant gets the chance to explain its conduct. But that does not help here. Ticketmaster talks a good game in claiming to fight bots and protect security, but it was caught red-handed doing exactly what it claimed to be fighting against.

In 2018, the Canadian Broadcasting Corporation and the Toronto Star sent undercover reporters to a conference where “representatives for Ticketmaster pitched them on TradeDesk,” the company’s “invite-only proprietary platform for reselling tickets.” The reporters “capture[d] a rep on camera saying that Ticketmaster’s ‘buyer abuse’ team will look the other way when such practices take place on its own platforms,” with the representative conceding that some brokers have “literally a couple of hundred accounts.”

Antitrust violations tend to be addressed with remedies that lean toward the modest rather than aggressive side. This case is different. The blatant violations of the 2010 decree show that the company cannot be trusted to undertake actions a court might compel. For that reason, Ticketmaster and Live Nation should be broken up, with additional remedies including the termination of exclusive contracts and sale of venues.

Taylor Swift fans rightly were upset when Ticketmaster bungled the rollout of tickets for her tour. We should all be upset. A strong antitrust case and remedy could fix this.

Michael A. Carrier is a board of governors professor at Rutgers Law School.