How brands use memes
A meme is a format people already know: an image macro, a reaction picture or a short video template. A brand borrows the joke structure and makes its own product, customer or industry the punch line. For a small brand, the appeal is cost: a good meme needs an idea, not a production budget.
Speak to one audience
The best brand memes are inside jokes for a niche: bakers, accountants, dog owners, local regulars. A joke that only your customers get is shared by your customers.
Make your own images
Use the joke structure, not the famous picture. Shoot, draw or license your own image to avoid most copyright risk.
Move fast, but check
Before you post, check three things: who owns the image, whether a real person is shown, and whether the post is paid.
Measure, then repeat
Score every meme post with the same formula to learn which jokes get saved and shared.
Meme post engagement rate calculator
Enter two posts' numbers from your platform's insights. Interactions are likes + comments + shares + saves. The tool divides them by followers and by reach (the number of unique accounts that saw the post) and compares the two posts.
Post A
Post B
| Result | Post A | Post B |
|---|---|---|
| Interactions | - | - |
| Engagement by followers | - | - |
| Engagement by reach | - | - |
| Shares + saves share of interactions | - | - |
Formulas: engagement by followers = interactions / followers x 100; engagement by reach = interactions / reach x 100. Platforms count reach differently, so compare posts from the same platform. Nothing leaves your browser.
The legal risks
Copyright: the image is not free
According to the US Copyright Office, copyright protects an original work from the moment it is fixed, with no registration and no copyright notice needed (17 U.S.C. 102). The photo or film still behind a popular meme almost always has an owner. A brand can rely on fair use, but fair use is a case-by-case defense, weighed on four factors in 17 U.S.C. 107: the purpose of the use (commercial use weighs against you), the nature of the work, how much you took, and the effect on the market for the original. In Andy Warhol Foundation v. Goldsmith (2023), the Supreme Court held that the first factor did not favor licensing an artist's version of a photographer's picture to a magazine, because the use was commercial and served substantially the same purpose as the photo. Advertising is a weak position for a fair use claim.
If the owner registered the work in time (17 U.S.C. 412), statutory damages under 17 U.S.C. 504(c) run from $750 to $30,000 per work, up to $150,000 for willful infringement, and down to $200 for an innocent infringer. Platforms also remove posts after a takedown notice under 17 U.S.C. 512.
Right of publicity: real faces sell nothing without consent
Using a real person's name or face to promote a product can violate the right of publicity, which is state law and differs by state. California Civil Code section 3344 allows damages of $750 or the actual damages, whichever is greater. New York Civil Rights Law sections 50 and 51 also ban the use of a living person's name or picture for advertising without written consent. A celebrity reaction image can also suggest a false endorsement under the federal Lanham Act (15 U.S.C. 1125(a)).
FTC endorsement disclosure
The FTC's Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 CFR Part 255, revised in 2023) apply when a creator who posts your meme has a material connection to your brand: payment, free products, a discount, or a family or business tie. The FTC's guide "Disclosures 101 for Social Media Influencers" says the disclosure must be in the post itself and hard to miss. Plain words such as "ad", "advertisement" or "sponsored" work. Vague tags such as "sp", "spon" or "collab" alone do not. In a video meme, the disclosure belongs in the video, not only in the caption. The 2023 Guides also expect advertisers to monitor their endorsers.
The FTC's rule on consumer reviews and testimonials (16 CFR Part 465, in effect since October 21, 2024) also bans buying or selling fake indicators of social media influence, such as bot followers or fake views, for commercial purposes.
General information, not legal advice. Sources: US Copyright Office and Title 17 of the US Code, Federal Trade Commission (16 CFR Parts 255 and 465), California Civil Code section 3344, New York Civil Rights Law sections 50 and 51.
Frequently asked questions
Can a brand use a popular meme image for free?
Not safely. Most meme images are photos, film stills or drawings that someone owns. Copyright protection is automatic, and fair use is decided case by case under 17 U.S.C. 107, with commercial use weighing against it. Original images or licensed images are the safe choice.
Do I need #ad when an influencer posts a meme for my brand?
Yes, if there is a material connection such as payment, free products or a family or business relationship. The FTC Endorsement Guides (16 CFR Part 255, revised 2023) call for a clear and conspicuous disclosure in the post itself.
Should I divide engagement by followers or by reach?
Use both. Engagement by followers compares accounts of different sizes. Engagement by reach shows how the people who actually saw the post responded, which is better for comparing two posts from the same account.