Ticket Masters, page 17
Although the band never overanalyzed it, what the Grateful Dead sought to implement flew in the face of concert industry practice (none too surprising since, as Bill Graham once famously described the group, “They’re not the best at what they do; they’re the only ones who do what they do”). A debate that has come to take on additional urgency today, with multi-rights deals and VIP packages, is the question of who actually “owns” the ticket. The promoter is the risk-taker, purchasing the act and renting the building where the show will take place (in many cases the promoter and the facility are one and the same). The ticketing company distributes the seats and handles the proceeds. Lost in all of this at times is the artist, the raison d’être for the entire process.
One person keenly aware of the performers’ potential sway was Fred Rosen. As he had said: “The only true monopoly in the business are the acts. An act decides how much it’s going to play, how much it’s going to charge, and the big acts in particular have total control of what they do.” Albany’s Knickerbocker Arena had been open for little more than a year, and Rosen recognized that allowing the Dead to run roughshod over a new contract, where the band did not have an extended history with the facility, would make for poor precedent (and on top of this he was perturbed by the treatment of his outlets, resulting from the quick sellouts caused by the limited available inventory). These instincts led Ticketmaster’s CEO to conclude that he had to move against the band. He issued a mandate limiting the group to ten percent of the tickets to an upcoming Giants Stadium show. The Grateful Dead did not respond warmly to this fiat. And so it fell to billionaire Deadhead John Pritzker to bring the two defiant parties together in his San Francisco hotel suite.
GRATEFUL DEAD ATTORNEY HAL KANT possessed a skill set that rendered him well suited for a tussle with Rosen. Prior to graduating from Harvard Law School in 1958, Kant had received a master’s degree from Penn State and then spent a few years as an army psychologist. Yet beyond any insights he may have gleaned from his educational and clinical experiences, Kant also was a formidable adversary because he could play his hand exceptionally well. The attorney’s World Series of Poker bracelet was a testament to that fact.
Kant first indulged his “yen for the felt” in the mid-1940s as an occasional student at DeWitt Clinton High School in the Bronx. There he spent nearly half his days playing penny ante poker in the basement of an adjacent tenement. His passion for the game extended into his adult life, and after some successful finishes in local casino tournaments, he entered his initial World Series of Poker event in 1986. Kant found himself at the final table on a few occasions before earning his bracelet (and $174,000) a year later with a victory at the Omaha Pot Limit event. Kidd Candelario, the head of Grateful Dead Merchandising, commemorated Kant’s ongoing success, which included a first place finish at Donald Trump’s U.S. Poker Championships, with a T-shirt that featured a skeleton card dealer with Kant’s “nom de poker,” Deadman.
Kant had come to work with the Dead through happenstance. In the 1960s the lawyer began a music practice and represented such groups as the Association (“Along Comes Mary,” “Cherish” and “Windy”) because the boutique Beverly Hills law firm he had joined was next door to the William Morris Agency, and Doug Weston, owner of Los Angeles folk club the Troubadour, had ambled over searching for someone to assist the Good Time Singers (who were then backing Andy Williams on his television show).
By 1971 Kant had moved on to TV and film law, when a friend of his from grad school introduced him to the Grateful Dead, who, for accountability’s sake, requested his services to the exclusion of any other music clients (the group’s previous manager had just emptied the coffers and lit out for Mexico, and he was the father of Grateful Dead drummer Mickey Hart, no less). Given the direction of his practice and the nature of the personalities involved, Kant assented, thinking that the results would be “at the very least, entertaining.” To his mind the gig proved to be just that, involving such tasks as convincing Jerry Garcia to pursue a legal remedy after Ben & Jerry’s began marketing their new flavor of ice cream, Cherry Garcia, without his consent or concern (the guitarist told the lawyer, “At least they’re not naming motor oil after me,” before eventually receiving a sizable stipend) on through negotiating the briefest recording contract of the era, a four-page deal with Arista Records in 1988 at a time when most agreements topped seventy pages.
It was a cavalier attitude buttressed by a sense of righteousness and a penchant for the absurd that Kant, who passed away in 2008 from pancreatic cancer, brought to the Hyatt that day.
The calamari finally arrived, signifying that the meeting proper could begin. While Kant focused on the appetizer, Cameron Sears opened the proceedings, affably if awkwardly, by making unnecessary introductions. He began, “John, you know us, but for Fred’s edification let me explain who we are. We’re a family. . . .” Sears then offered an overview of the Grateful Dead organization, detailing the connections between band, staff and fans.
John Pritzker saw some symmetry and chimed in next: “Cameron, Steve, you know us, but for Danny and Hal’s edification let me explain who we are. We’re a family. . . .” Pritzker then delivered a quasi-serious riff on the fact that his side of table also represented family, which was not to be discounted and would not yield any moral high ground.
Sears quickly countered, “John, you know when you need tickets to shows or your brothers need tickets to shows how we accommodate you?”
Pritzker, who was in his late thirties at the time, acknowledged: “Yeah, you guys have always been great. I appreciate it.”
“Well, we have a lot of friends like you guys. We have people that are steelworkers that are our friends. We have people who are business people who are our friends. We even have lawyers at the Justice Department who are our friends.”
This was Fred Rosen’s cue. He grabbed the reins and set off on a lengthy diatribe that began with the outlet damage in Albany, emphasizing that while the Dead only came through once a year to play three shows, he was attempting to preserve his reputation for the other 362 days. From there he related the history of Ticketmaster and its recent success in liberating concert facilities from the stiff, lifeless Ticketron operating system. Rosen puffed out his chest and turned up the volume a notch as he explained that such advancements rested on the fundamental principal of exclusivity. He harped on this theme, insisting that the Grateful Dead was attempting to undermine Ticketmaster’s signed, enforceable agreements to secure the totality of a given venue’s ticket inventory, which it had acquired through fair bidding on the open market.
Looking back, Sears reflects with some understatement: “I would say that Fred Rosen is a very combative personality. He digs in and he knows what he wants, and he didn’t want to give it up. He felt he was giving and we were taking. That was the premise he came into it with. From his point of view he was right. I mean, he was paying money to the buildings to be able to sell these tickets, and here’s a hot act coming in that’s saying, ‘We’re taking fifty percent.’ He’s going, ‘But I know those tickets would sell instantly on my system, and I would be deriving the revenue.’ It’s not that dissimilar from the vendor who sells Coca-Cola, the vendor who sells beer, the vendor who handles the parking. Those guys have a contract. It’s not as if you can come in and say, ‘Hey, we got our own parking guy.’ There’s a contract. And that’s what Fred did shrewdly. He offered people a lot of money to give him exclusive rights.”
Though the ultimate outcome is of no dispute, there is a difference of opinion as to what happened next. Rosen recalls: “When I told them what happened at the outlets, they weren’t happy. I looked them in the eye and asked, ‘Why is your fan club better than the people standing in line?’ And they said, ‘Well, they’re not,’ and I said, ‘Well, you have to have balance.’ I knew I’d make a deal. There was never an issue that I wouldn’t make a deal, but the only way to make a deal is to sit in a room and get to a place where people will compromise, and they’ll compromise because they know you’re tough and you will take the most extreme stand.” Still, Rosen asserts, “I had great admiration for how they treated their fans and was willing to work with them.”
The Dead contingent remembers it slightly differently. To their recollection, as the Ticketmaster CEO began building up momentum on particular points, Kant started interrupting him with seemingly innocuous questions about Rosen’s personal life or work habits and then appeared to jot down the answers. Rosen abided this for a short while, but after the seventh or eighth time the agitated executive stopped his monologue altogether and demanded, “Why are you doing this?” In fact, Kant was coffee housing, a common poker tactic to render an opponent unsettled. However, the lawyer answered, “I just want to see what kind of witness you’re going to make.”
Rosen sputtered to a complete stop.
Kant laughs. “I was just scribbling. I was surprised by his reaction. He was really taken aback.”
The Grateful Dead attorney then took the offensive. After Rosen attempted to build up steam once again, Kant interrupted: “First of all what you’re doing presents antitrust problems. As you know, the antitrust division is looking into this, and we’ve hired counsel to assist them.”
Rosen retorted, “Forget about antitrust. Have you ever heard of interfering with a business relationship? You’re interfering with my business relationships.”
Kant went all in: “It’s interesting you mention that because just this morning I told our lawyers to forget about antitrust, to go after you for interfering with a business relationship. How long have you been in business?”
As the band recalls, Fred Rosen then fell silent. His line of argument had been predicated on the changes he had wrought since taking over Ticketmaster in 1982. However, he recognized that the Grateful Dead had been in business with many of the same promoters and facilities for upward of twenty years. Then the CEO blurted out, “Who are your lawyers?” suspecting that perhaps Kant was bluffing.
“Morrison & Foerster.”
Once again Rosen found himself at a loss. He, too, had contacted the same firm, known within the profession as MoFo for its tenacity and aggression. Ticketmaster had enlisted the San Francisco office while Kant had hired the New York and Washington office.
In looking back, Pritzker shares Rosen’s account of the meeting at the Hyatt, which runs counter to the brief overview presented in Dennis McNally’s official biography of the Grateful Dead, A Long Strange Trip: “In McNally’s book, he said something about how we were using the same law firm and they out-clevered us. That isn’t at all what happened.”
At this point Kant decided to pile it on a bit, asking their host whether he really wanted to unleash thousands of angry Deadheads on the Hyatt hotel chain. Pritzker answered, “As long as they pay the going rate, that’s okay.” But sharp responses aside, to the band’s mind at least, the momentum had shifted.
The meeting wrapped up shortly thereafter, as the parties arrived at what the Grateful Dead would deem “The Fifty Percent Solution.” This nearly ratified the status quo, as the band was permitted fifty percent of the tickets to arena shows, thirty-five percent to amphitheaters and twenty-five percent to stadiums. Steve Marcus interjected himself at this point, expressing reservations regarding the stadium figure, as it represented half of what GDTS had been selling. However, he was hushed and now recalls, “We ended up being able to do almost fifty percent of the stadiums anyway.”
No written agreement was ever tendered. However, this course was acceptable to Kant because, “We got everything we wanted. As long as they didn’t annoy us, there was no need to do anything else. It never was a problem again, and I didn’t see any reason for us to be pushing it or spending any money on it.”
OVER THE MONTHS THAT FOLLOWED, while Ticketmaster continued to consolidate its power, a number of bands began asking GDTS for advice. Metallica approached the group regarding the tapers section that the Dead had carved out for each show. Marcus brought this request to the band members, who encouraged him to “tell them everything.” So he handed over all the materials GDTS had created for the venues, promoters and fans, explaining, “You’re welcome to use it all, word for word.” And so the biggest metal band in the world did just that, utilizing precisely the same language in establishing and promoting their own dedicated taping realm. A Deadhead from Vermont named Shelly Culbertson also contacted Marcus and received similar support as she developed a mail-order ticket service for the band Phish.
Two arena-level acts then initiated discussions about the possibility of outsourcing their own ticketing efforts to GDTS. U2 inquired as to whether GDTS would be willing to take on responsibility for what was projected to be a two-year international tour, but ultimately the office concluded that the Irish group would not be a perfect fit because, as Frankie Accardi states rather plainly, “None of us were U2 fans. We were all Deadheads.”
Pearl Jam manager Kelly Curtis then visited and, after he watched the staff in action, raised the possibility of hiring GDTS to handle the group’s ticket fulfillment. Ultimately both sides decided this wasn’t feasible either, as Pearl Jam was searching for methods to keep its ticket prices at a bare minimum and indicated that GDTS needed to establish a lower service charge for Pearl Jam fans than for Deadheads (the $2.50 fee was still above Pearl Jam’s target price).
Still, the legacy of that meeting at the Hyatt Regency would resonate with the Dave Matthews Band (who would become the largest touring artist of the 2000s) and their manager Coran Capshaw, himself the veteran of 400 Dead shows, who later tweaked the GDTS model and established the ticketing and merchandise fulfillment center MusicToday. The String Cheese Incident, who would wage their own battle with Ticketmaster a decade later, used the Dead’s precedent as the main platform for their argument.
In the near future the Grateful Dead’s successful stand against Ticketmaster would embolden Curtis and Pearl Jam to launch a crusade of their own.
CHAPTER 5
Rumble in the Jungle
WEDNESDAY, JULY 5, 1995, WAS a muggy day in Washington, DC. With temperatures in the eighties and humidity high, it was typically oppressive weather in the U.S. capital. As Robin Williams’ radio DJ character in the film Good Morning, Vietnam once offered, “It’s hot and wet. Nice if you’re with a lady. Ain’t no good if you’re in the jungle.”
The political landscape in Washington has always been something of a jungle. Vast, dense and unforgiving, its hierarchal web of players and policies constantly changes and regenerates like a natural ecosystem.
Given the seemingly infinite activity of Washington politics, the decisions, legislation or activity of any given day in its history require some amount of gravitas to be remembered. The passage of the Child Protection and Obscenity Enforcement Act by Congress that day — requiring that producers of pornography keep records of all models who are filmed or photographed, and that all models be at least eighteen years of age — perhaps sticks out given the multibillion dollar industry it affected. There was another multibillion dollar segment of the entertainment industry that received notice that day, too. However, it didn’t receive any legislation or lengthy critique — just two sentences from the Department of Justice’s antitrust division.
“The Department of Justice announced today that it has informed Ticketmaster Holdings Group, Inc., that it is closing its antitrust investigation into that firm’s contracting purposes. The Department will continue to monitor competitive developments in the ticketing industry.”
The story behind those two sentences involves the first public battle the concert industry had faced since its humble beginning three decades earlier.
THE MUSICAL GENRE KNOWN AS grunge that developed in the Pacific Northwest in the late 1980s and early 1990s was an art form reacting, in part, to what it perceived as the country’s apathy-inducing commercialism. The Reagan years in particular seemed unnecessarily greedy, personified by Michael Douglas’s character in the film Wall Street, who famously boasted, “Greed, for lack of a better word, is good.”
Much like the punk music that preceded it, grunge was very much a DIY movement that was happy to fly under the radar of the mainstream. It relied upon itself for support — not on the institutions that had become music’s salesmen. Still, any band’s dream is to be able to ply its craft for a living. If that opportunity happens to come from a major label, so be it. Grunge presented a raw and brooding sound but one that, like punk, became commercially viable.
The Seattle-based band Pearl Jam released its debut album, Ten, in August 1991. Nirvana’s Nevermind followed in September and then Soundgarden’s Badmotorfinger. Each album rocketed into the charts, all eventually going platinum. Suddenly these grunge bands were on national radio, cutting videos for MTV, appearing on magazine covers and playing to a lot more people than they had just a few months earlier. What was once alternative was now, suddenly, the mainstream.
In May 1992, having already toured extensively throughout the United States and Europe — Ten was a worldwide success by no small measure — Pearl Jam wanted to do a free outdoor concert in its hometown of Seattle. Though the band had spent five months getting the necessary permits and paperwork for Gas Works Park, city officials pulled the plug three days before the event, citing crowd concerns: the 5,000 people initially expected had swelled to 20,000 to 30,000. The show was eventually rescheduled for September in Magnuson Park.
While the rescheduled show was still free, the city required tickets to help deal with crowd issues. Pearl Jam contacted Ticketmaster to inquire about its ticketing services for the show. The company asked for $1 to $1.50 per ticket, asserting the need to cover its costs. The thought of shelling out $45,000 so 30,000 fans could see the show for free didn’t agree with the band. Dissatisfied, the group found other solutions, utilizing local radio to spread word that tickets were being distributed at the Seattle Center Coliseum. While the show was a success, little did the band know that it was only the beginning of its troubles with Ticketmaster.
