Live touring and ticketing: the sky is the limit, despite anticompetitive allegations marring the live industry

live touring and ticketing

Let’s dive into the characteristics of this very serious contender for the top spot for revenue generator in the music industry. The live touring and ticket business is back with a vengeance, post COVID-19 pandemic. However, not all is well in this very lucrative sector of the music industry, as tour promoters and venues, and even search engines (!), see their liability, legal and financial risks increasing, in a world dominated by fans’ satisfaction, safety and fair access to tickets.

1. How live and touring have become the core revenue stream for artists

The music business has many facets, with each musical activity generating its own sources of revenue, as follows.

The music publishing side, which mainly derives income from monetising the copyright on musical compositions and song lyrics:

  • by way of synchronisation fees, paid to music composers and lyricists, as well as to their music publishers and sync agents, for the licencing of copyright on musical compositions and/or lyrics which are synchronised into video content (such as advertisements, films or TV series and other visual projects), and
  • by way of print licencing fees, paid to music publishers, to obtain the right to print, display and publish the music notes and lyrics of a song on sheet music and scores, which are then sold to music performers who will perform those songs.

The second income stream is the sound recording side, which mainly derives income from monetising:

  • the neighbouring rights on sound recordings (also called phonograms, songs, music tracks, etc.), by way of royalties collected by neighbouring rights collecting societies around the world, from music users such as major TV networks, radio stations, pay cable services, websites, the hotel industry, nightclubs, bars, theme parks, etc.;
  • the copyright on the master recordings, by way of sync fees paid to music performers (singers and session musicians), as well as to their music labels and sync agents, for the licencing of the sound recordings which are synchronised into video content (such as commercials, films, TV programmes and other visual projects).

Next to revenue streams derived from the above-mentioned copyright in the music compositions and lyrics, as well as copyright in the master recordings and neighbouring rights, there is touring income.

Touring revenues are generated by tickets bought by fans, music lovers and teenage fans’ chaperones, in order to have the privilege of watching a music performance live, either in a concert venue, a school, an arena, a stadium, a casino or online on a streaming site.

Indeed, most music performers model their careers on that of the concert performer (in terms of both live and recorded performances). Touring is essential for performers to:

  • develop their craft;
  • grow and sustain their audiences;
  • help promote their record, stream and merchandising sales, and
  • build their stature (for this reason, most ‟non-legacy” performers will schedule tours to coincide with the launch of a new record album release).

Concert performers function through true business entities, as opposed to being employees of a producer or promoter. They possess assets (such as valuable names, trademarks, very expensive music, sound and lights equipment and instruments, and often copyrights on their songs, musical compositions or lyrics); employ numerous individuals (such as agents, managers, supporting musicians and tour personnel) and, if all goes well, earn substantial touring income.

Post COVID-19 pandemic and its string of excruciatingly-long lockdowns, the live touring industry has come back with a vengeance, with some performers’ tours single-handedly being recognised as contributing to a nation’s, or town’s, economy, in the billions of USD or GBP.

While most music performers, composers and lyricists complain about the paltry level of their streaming income, which is going to get even smaller for the vast majority of performers due to the implementation of Spotify’s new 1,000 play minimum policy, touring is increasingly seen as THE way to make serious bucks in the music industry. Some industry analysts go as far as to say that touring is where musicians make most of their annual total income, dwarfing the revenue earned from streaming.

Pollstar, a service that monitors live performance/touring statistics, reports that live concert sales for the 2023 worldwide top 100 tours were up 46 percent to USD9.17 billion from USD6.28 billion the previous year. Average grosses were up a whopping 53.20 percent to USD2.37 million per show from USD1.54 million. Attendance increases were less dramatic but still significant: total ticket sales were up 18.40 percent from 59 million to 70 million; and average tickets per show were up 24.25 percent from 14,570 to 18,103. Average ticket prices increased 23.33 percent from USD106.07 to USD130.81.

2. The live and touring ecosystem

The key players in music touring all have very specific roles, as follows.

Each one of those stakeholders has a very specific, and important, role to play in putting on a live show or a tour. Unlike streaming technologies, which easily broadcast music tracks to billions of listeners worldwide at the pressing of a button, organising a live show or a tour is difficult and requires a team of specialists.

2.1. Artists

Music performers are the driving force behind the event’s overall success.

In 2023, for example, the top performer was Taylor Swift, who set an all-time touring record with a USD1 billion touring gross.

The music industry would be virtually non-existent if it weren’t for artists who perform. Indeed, the live music sector sells tickets for the artists and their songs.

The entire live event gets a lot of positive feedback from the audience, if the performer performs well. Regardless of how much effort is put into making the concert a reality, if the artist fails to live up to expectations on stage, it sabotages and undermines all of it.

2.2. Managers and tour managers

The management of performers will participate in route planning, assist the artist in selecting the touring band, and act as a liaison between the artist’s live performance and the rest of their professional life.

The tour is in the hands of the artist’s manager, who serves as the team’s chief executive officer.

Top performers’ management companies are Full Stop Management, Red Light Management, Roc Nation, Salxco and SB Projects, for example.

Famous music managers include Paul McGuinness, who managed the rock band U2 from 1978 to 2013.

Once the tour has been set up, managers are responsible for ensuring it goes on without a hitch, ensuring that the booking agent is making the best possible deals, and making the tour happen.

The artist’s manager is in charge of:

  • coordinating and supervising the transportation of people and equipment;
  • hiring and smooth functioning of crews;
  • booking hotels and restaurants;
  • collecting touring receipts while travelling;
  • dealing with promoters (the people who hire the artist, rent a hall, advertise the event, etc.), and
  • resolving any issues that arise (such as missing equipment, improper advertising, dates that aren’t selling well).

Many of these responsibilities are transferred to a tour manager or tour accountant for more well-known musicians.

However, the artist’s personal manager is ultimately liable and bears the burden of proof, in case anything goes wrong during the tour.

Keeping things moving smoothly on the road is the job of the tour manager. It is their job to ensure that everything is in order, from the hotel reservations to the plane tickets, to the bus schedules, and to ensure that the artist and their entourage arrive at their destinations on time and with no problems.

The tour manager must check the promoter’s accounting (settlement) every night of the event and ensure that the collected money is deposited accurately.

There is no tour without tour managers; they are what keeps it going.

2.3. Record labels

Record companies in the 1960s and early 1970s supported and underwrote the costs of tours by their artists, but following the recession in the 1970s, again during the label retrenchment of the 1990s, and again since the tightening economic conditions besetting the industry during the financial crisis in 2008 to 2010, this practice has diminished considerably.

In the wake of further record industry restructuring in response to declining sales of recorded music in the past decade, many labels have begun to demand a participation in some or all of artists’ concert touring, merchandising endorsement, publishing and other entertainment-related income streams as part of ‟360 deals” (so-called because the label seeks participation in the full ‟360 degrees” of artist commercial activities) or ‟Multiple Rights Deals” to help offset the risks of investment in record production and release.

The major record labels (which represent the majority of music streamed and sold, making up as much as 80 percent of the music market or more, depending on the year) take the position that their marketing and release of an artist’s recordings are a primary engine for the artist’s success in and throughout all fields of the artist’s entertainment endeavours, including the artist’s touring ‟fortunes” and, as such, the record label should also participate directly as a partner/investor – particularly in a period in which touring and associated merchandising rights may eclipse income generated from record sales.

Where record labels, major and independent alike, may have once viewed tour support as an unavoidable if not indispensable marketing cost of record sales, now the recording and its promotion are understood to be marketing vehicles for all artists’ entertainment industry related revenues from which the labels uniformly seek a participation, and, depending on the status and leverage of the artist, the labels may be willing to increase their support (financial or otherwise) for artists who agree to grant the label an economic participation in most, if not all, fields of the artist’s entertainment career, including tour income.

Other than superstar tours, the reduction in tour support, from record labels, resulted in a downsizing of shows (i.e. reducing the technical equipment, number of personnel, and other ‟perks” on the road). It also required performers to appear in smaller venues with lower costs and less risks, in the event that they did not sell out.

However, recognising the promotional value of touring, especially since most music tours follow an album release, performers sought other ways to finance tours.

2.4. Tour promoters

Promoters are responsible for securing the money for a tour and purchasing the tickets. They are the people who employ the artist, for the night, in each market.

Top tour promoters are Live Nation, AEG Presents, OCESA / Grupo CIE, Semmel Concerts Entertainment, etc.

Concert marketing is a diverse field, with a wide range of promoters to choose from. They may be local, regional, national or worldwide, depending on how much of the country, region or world they serve.

Promoters reserve the space (which implies that they are responsible for paying the rent, even if no one turns up at the concert), fund publicity for the event, and oversee its execution.

After the above-mentioned decline in financial involvement and support from their record labels, some star performers opted to enter into a comprehensive tour agreement with a national promoter or even international promoter (such as Live Nation or AEG) that guarantees a minimum fee against a percentage of ticket sales and merchandising grosses, and, in turn, assumes all other production and venue arrangements, which likely will include the right to solicit tour sponsorship.

Rights typically granted in such comprehensive tour agreements may include not only the right to solicit tour sponsorship (with the artist generally having the right to reasonably approve the identity of the sponsor, the right to preclude potential tour sponsors whose goods or services would conflict or compete with those of already existing artist sponsors or those who are inconsistent with the artist’s ‟identity” and/or values, and any sponsor benefits or ‟deliverables” requested by a tour sponsor that require active participation by the artist, such as ‟meet and greets”, concert streaming, etc.). They may also include the right to control the sales and allocation of all ticket inventories through all sales and distribution channels, the right to implement revenue-maximising services including but not limited to ‟first class” seating, VIP packages, and the right to book private personal appearances (which are not advertised and for which tickets are not sold to the general public).

In negotiating the concert tour agreement with the tour promoter, the artist must also arrive at terms to set aside and make available a sufficient number of preferred seats for members of the artist’s fan club and other VIP ticket sales endeavours.

The insurance provisions of touring agreements are also the subject of extensive negotiation. Whether the artist is a ‟baby band” just undertaking a touring career or an international superstar, obtaining, at a minimum, general liability insurance and, at higher levels, non-appearance and tour cancellation insurance are critical considerations for the performer.

Commonly, tour agreements provide that if any concert is cancelled by reason of a force majeure event, the artist and promoter will use their commercially reasonable efforts to reschedule such concert to a mutually approved date or replace such concert with a mutually approved substitute, contiguous to the current itinerary for the tour.

Beyond that, if any cancelled concert cannot be rescheduled or replaced, then the promoter will generally not be required to make the per show guarantee payment for that concert (which should be covered by the artist’s tour cancellation insurance).

However, if any concert cancellation is due solely to the fault of the artist, then the artist is liable to the promoter for all direct, out of pocket, verified expenses directly related to the applicable cancelled concert (with the promoter generally required to use its commercially reasonable efforts to mitigate the resulting costs promptly after any such cancellation).

2.5. Sponsors

While star performers may arrange commercial sponsorships, new and less famous performers are often left to find an ‟angel” or to self-finance their tours.

With respect to such sponsorship, whether for an arena act or a new band touring small clubs, a corporate sponsor provides money to mount and finance the tour, in exchange of the right to have its corporate logo or logo of its products included in the advertising or promotion of all the tour dates, or perhaps to use the artist’s music, name, trademarks and likeness in its independent advertising and promotion.

For example, in 2012, Beyoncé partnered with Pepsi for a USD50 million deal in which Pepsi sponsored a variety of creative projects for Beyoncé, including her tours, as well as promoting the singer’s fifth studio album.

Beyond this, the sponsor may agree to pay for advertisements, agree to purchase a guaranteed number of tickets at each venue, agree to pay a promotional fee in addition to costs. The sponsor may also elect to enter into a separate advertising agreement with the performer in which the performer may appear as a spokesperson for the company (or at least, permit use of the artist’s approved name, approved likenesses and perhaps music) in a commercial print, television and/or radio advertising campaign that coincides with the tour.

In all aspects of the artist’s career, it is important for the performer to control the manner in which the artist is portrayed and the artist ordinarily will have the right to approve before use all of the ‟Artist’s Identifications” to be used by the tour promoter and any sponsors, including the artist’s personal and professional names, any nickname, likeness (including caricatures), photographs, video/film footage, voice, twitter/X and Instagram feeds, facsimile signature, trademarks, biographical information, artwork, designs, logos, graphics, etc. and any reproduction or simulation of the foregoing.

Typical sponsorship arrangements made by managers, agents or intermediary companies will involve rights to merchandising, including T-shirts, sweatshirts and other memorabilia imprinted with the name of the artists and the sponsor, coinciding with the tour or a separate term, with the costs and proceeds divided in a manner reflecting the strengths of the negotiating parties.

The sponsor will probably insist on getting a moral clause obligation in the sponsorship agreement, in order to swiftly severe ties, with liability, with the artist, in case such performer damages their reputation, or the sponsor’s reputation, due to bad behaviour and/or other reprehensible acts.

Where the artist is recording pursuant to a 360 deal, the label may be participating actively in one or more of the merchandising or promotional capacities, and will in any case likely share passively in the pool of sponsorship and merchandising revenues.

2.6. Booking agents

An artist’s manager and a booking agency work together to book the tour. They strike deals with the people in charge of promoting the event (which includes picking promoters that will produce the show).

Examples of top booking companies are William Morris Endeavor/WME, Creative Artists Agency/CAA, United Talent Agency, Paradigm Talent Agency, etc.

Throughout the live music industry, the agent represents the artist. They want to arrange the tour, sell the events to local talent buyers, select a venue, and negotiate the pricing with the promoters.

Decisions about the artist’s tour schedule, radio advertising, ticket prices, and deposits paid in advance by promoters are all made by the booking agents.

2.7. Venues and festivals

In the live music industry, festivals and venues provide the space and, typically, the base infrastructure necessary for the concert to take place.

Traditionally, promoters rent the building from the owners, then negotiate with the performers on their behalf.

Music festivals are the same.

Musicians can gain exposure to new audiences (fans and music business executives) while making a sizable profit from participating in high-profile festivals.

Festival performances might be more crucial to an artist’s long-term success than their immediate financial benefit, especially for up-and-coming, independent performers.

It is commonly assumed that a performance venue will comply with all applicable ordinances and maintain all necessary licences for public performances, whether on the basis of physical code and public safety requirements, public health code requirements or other business licencing requirements relating to noise, alcoholic beverage sales, and music public performance licences through music publishing collecting societies such as ASCAP, BMI and SESAC, in the USA, and PRS in the United Kingdom (‟UK”) and SACEM in France, and through neighbouring rights collecting societies such as GMR in the US, PPL in the UK, SCPP and SPPF in France.

However, the fact is that the venue itself may or may not be properly licenced. For example, nightclubs and similar venues are more likely than not to have annual ‟blanket” performance licence agreements with the neighbouring rights collecting societies. But larger venues that are leased to promoters for the purpose of presentations of concerts typically impose the obligation to secure the necessary public performance licences on the promoter, under the terms of the venue lease for the shows concerned.

Because the performers could be held responsible for failure to obtain such a safety-related licence or the performance date could be threatened by a promoter’s failure to obtain these or other licences, the contract between the performers and the promoter should require that the promoter obtain and provide for advance review copies of all necessary licences, including the public performance licences.

A cautionary tale is, without a doubt, the debacle of Travis Scott’s Astroworld festival, which left eight fans dead and dozens severely injured after the crowd surged toward the stage during Scott’s performance. The civil and criminal liability of Travis Scott, Live Nation and the festival venue and event coordinators was triggered, via the scores of lawsuits that Astroworld victims filed. Traumatised fans alleged, in their lawsuits, that the co-defendants failed to provide adequate security, emergency medical services and adequately monitor the number of people entering the venue to ensure it did not become overcrowded. While Travis Scott was found not criminally liable for the Astroworld festival deaths, by a grand jury, in June 2023, to this day, he still has to fight against, and possibly settle, the hundreds of lawsuits and claims for civil damages filed by hurt fans.

3. Ticketing issues in the live music industry

3.1. Anticompetitive behaviour allegations against Live Nation and Ticketmaster

Post COVID-19 pandemic, allegations of anticompetitive behaviour, by tour promoters and other marketing agents, started to circulate and were even firmed up when the largest tour promoter, Live Nation, was sued by class action investors over anticompetitive business practices, in California federal court, in August 2023. Investors accused Live Nation of lying to them over alleged anticompetitive business practices, including charging exorbitant fees, bundling services, and retaliating against venues that use a ticketing service provider other than Live Nation’s subsidiary Ticketmaster.

Live Nation and Ticketmaster have been accused of acting in an anticompetitive way ever since the two companies merged back in 2010. In order to get regulator approval of that merger in the USA, Live Nation made a number of commitments regarding how the Live Nation touring and venue businesses would interact with Ticketmaster via a ten-year consent decree agreed with the American government’s department of justice (‟DoJ”).

As the consent decree was getting close to expiring, Live Nation was accused of violating some of its terms. Having looked into the allegations, the DoJ began planning legal action. But a deal was struck that stopped the matter from getting to court, and also extended the consent decree for another five years and a half. Since then, further allegations of misconduct have been made by Live Nation’s competitors and critics. And, more recently, it emerged that a new DoJ investigation was under way.

Indeed, the claims in the above-mentioned investors’ lawsuit originated from the increasing attention on Live Nation’s hold on the live music industry after the DoJ opened an antitrust investigation into the company in 2022. That investigation followed Ticketmaster’s systems crash during the highly anticipated resale of Taylor Swift’s Eras Tour tickets. In July 2023, Politico reported that that new investigation could result in new legal action being instigated by the DoJ against Live Nation. This DoJ probe into Ticketmaster and Live Nation, as well as the class action lawsuit filed by investors against Live Nation, are still ongoing, as far as we know.

Ticketmaster has also been sued by customers accusing it of anti-competitive practices. Over the years, Ticketmaster managed to force various such legal disputes with customers to arbitration – rather than having those disputes being fought out in public in a court of law – because the ticketing firm’s terms and conditions have an arbitration provision in them. Attempts by customers to argue that no one reads those terms and conditions, and therefore arbitration clauses should be unenforceable, have generally been unsuccessful. However, Ticketmaster then switched its chosen arbitrator from arbitration institution JAMS, to a company called New Era ADR. It argues that the latter company is better equipped to deal with complaints where there are lots of concurrent complainants, which is common in the ticketing market. But not only have complainants claimed that New Era is biased in favour of the ticketing firm, but that its processes – which the customers are forced to navigate – are ‟kafkaesque”. Also, the complainants argued in front of the California federal court that Ticketmaster ‟slid this change into terms that most consumers had previously agreed to, without flagging the dramatic shift being made”. Therefore, in August 2023, California judge George Wu denied the motion to compel arbitration of Sherman Act antitrust claims, in the Ticketmaster case, based in large part on the bellwether procedures for mass arbitration claims set out in Ticketmaster’s arbitration clause.

3.2. Fight against touting and marketing strategies and allies of touts

While Michael Rapino, president and CEO of Live Nation, unconvincingly denies any wrongdoing and plays the card of ‟I am a likeable guy and average-Joe who tries to do his best in the face of adversity”, the legal fight against touting and unofficial secondary ticketing platforms, such as Viagogo, StubHub and Live Booker, is going on in full swing on the other side of the pond.

Indeed, in March 2023, the Paris court of appeal upheld a first degree judgment against Google over ticket tout ads. The French courts confirmed that Google cannot allow unofficial ticket sellers to buy their way to the top of search results for artists and shows.

Secondary ticketing platforms like Viagogo and StubHub have long used Google advertising to promote tickets being sold by touts on their respective sites.

In France, where the law is particularly strict when it comes to the unofficial sale of tickets to shows, essentially banning the practice, French live industry trade group PRODISS went to court a few years ago to confirm that those laws meant Google should not allow secondary ticketing sites to advertise on their search engine (in particular, via Google Ads) in France.

Campaigners like PRODISS argue that, because many consumers don’t realise that the top results in a Google search are often there because the featured website paid for the top ranking, they assume those sites are the official sellers of tickets to a show. But, of course, the opposite is actually true, with the official sellers often appearing lower down the page.

Facing a bit of backlash as online ticket touting became ever more controversial, Google did start telling secondary ticketing platforms using Google Ad services that they had to better communicate the unofficial status of their sellers.

However, many campaigners argue that the top search engine has not gone far enough in ensuring consumers are not confused into buying touted tickets at a higher price which could be cancelled by a show’s promoter.

In 2020, the Paris ‟tribunal judiciaire” judged that Google should not allow secondary ticketing sites to advertise on their search engines in France. Google appealed the ruling. But the Paris court of appeal upheld the earlier judgment, and also ordered Google to pay 300,000 Euros in damages for failing to comply with the rules.

While the French government and courts keep on viewing the French people as a brain-dead and hapless lot, some fans employ pretty tough tactics to get retribution, as the fans’ lawsuit against Madonna, Live Nation and Barclays Center attest, whereby two New York residents and Madonna ‟fans” sued the singer after she allegedly started her set over two hours late, on the 13 December 2023 Celebration Tour concert.

Crefovi’s live webinar: Live touring and ticketing – the sky is the limit – 26 January 2024

Crefovi regularly updates its social media channels, such as LinkedinTwitterInstagramYouTube and Facebook. Check our latest news there!

    Your name (required)

    Your email (required)


    Your message


    Leave a comment

    Your email address will not be published. Required fields are marked *